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JULY 1, 1970-DECEMBER 31, 1972 

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The Administrative Conference of the United States is a perma- 
nent, independent Federal agency established in 1964 by the Adminis- 
trative Conference Act, 5 U.S.C. §§ 571-576, and activated in January 
1968. It is the successor of two temporary Administrative Conferences, 
established by President Eisenhower in 1953 and by President Ken- 
% nedy in 1961. Its mission is to monitor all aspects of the administrative 
process in all of the executive and independent agencies ; to identify 
and analyze the causes of administrative ineflficiency, delay and un- 
fairness; to recommend to the agencies, the President, the Congress 
and the Judicial Conference of the United States specific means of im- 
provement; and to furnish, on agency request, assistance and advice 
on matters of administrative procedure, y^ 

The chief executive of the Conference is a full-time Chairman, ap- 
pointed by the President with Senate confirmation for a five-year 
term. Its Council consists of the Chairman and ten members appointed 
by the President for three-year terms, drawn from Federal agencies 
and from private life. The Assembly of the Conference consists of the 
Council, 43 high-level representatives designated by 35 major depart- 
ments and agencies of the Federal Government, and 35 distinguished 
private citizens — practicing lawyers, academicians, state officials and 
others — who are specially knowledgeable in the field of administrative 

The Assembly conducts its business much like a legislative body, in 
Plenary Sessions that convene twice a year. The proposals to be con- 
sidered at these sessions are generally developed by standing commit- 
tees, which use the personnel resources of the Chairman's office and 
approximately 30 part-time consultants (mostly law professors) to 
conduct the detailed studies that form the basis of their reports. The 
functions of providing advice and assistance to the agencies, presenting 
Conference recommendations to the agencies and to Committees of 
the Congress, and seeking implementation of Conference proposals, 



are the responsibilities of the Chairman, who has the assistance of a 
small, highly qualified staff and the Conference's part-time consultants. 
This second volume of Administrative Conference Recommenda- 
tions and Reports covers the period July 1, 1970 through December 31, 
1972. During this time, four Plenary Sessions were held and recom- 
mendations 70-1 through 72-8 were adopted. In its December 1972 
Plenary Session, the Assembly adopted a new system of numbering 
its recommendations, so that those previously numbered consecutively, 
through 35, will in the future be identified as follows : 

1 to 8—68-1 to 68-8 

9 to 17—69-1 to 69-9 
18 to 22—70-1 to 70-5 
23 to 31—71-1 to 71-9 
32 to 35—72-1 to 72-4 

The material contained in the first part of this volume consists of 
the operative instruments governing the structure and work of the 
Conference, a listing of its membership, and the recommendations 
which it has formally adopted. The latter part of the volume, com- 
mencing at page 79, contains consultant and staff reports, which do 
not have the formal endorsement of the Conference but which were 
the basis for recommendations adopted. Many of these have already 
been published in scholarly journals, and where that is the case the 
earlier publication has been reproduced by photo offset. Finally, a 
Bibliography lists major consultant and staff reports that did not 
result in recommendations. 



The Administrative Conference Act 1 

Bylaws of the Administrative Conference 7 

Council Members 11 

Members of the Conference 12 

Former Members of the Council 14 

Former Members of the Conference 14 

Recommendations of the Administrative Conference of 
THE United States 17 

Recommendation 71-1: Interlocutory Appeal Procedures. 17 

Recommendation 71-2: Principles and Guidelines for Im- 
plementation of the Freedom of 
Information Act 18 

Recommendation 7 1-3 : Articulation of Agency Policies. _ _ 24 

Recommendation 71-4: Minimum Procedures for Agen- 
cies Administering Discretion- 
ary Grant Programs 25 

Statement: Views of the Administrative Con- 
ference on The "Report on Se- 
lected Independent Regulatory 
Agencies" of the President's 
Advisory Council on Executive 
Organization 27 

Recommendation 71-5: Procedures of the Immigration 

and Naturalization Service in 
Respect to Change of Status 
Applications 32 

Recommendation 71-6: Public Participation in Admin- 
istrative Hearings 35 

Recommendation 71-7: Rulemaking on a Record by the 

Food and Drug Administra- 
tion 42 

Recommendation 71-8: Modification and Dissolution of 

Orders and Injunctions 49 

Recommendation 71-9: Enforcement of Standards in Fed- 
eral Grant-in- Aid Programs, _ 50 



Recommendation 72-1 : Broadcast of Agency Proceed- 
ings 54 

Recommendation 72-2: Conflict-of-interest Problems in 

Dealing with Natural Re- 
sources of Indian Tribes 57 

Recommendation 72-3 : Procedures of the U.S. Board of 

Parole 58 

Recommendation 72-4: Suspension and Negotiation of 

Rate Proposals by Federal 
Regulatory Agenci es 62 

Recommendation 72-5: Procedures for the Adoption of 

Rules of General Applicability. 66 

Recommendation 72-6: Civil Money Penalties as a Sanc- 
tion 67 

Recommendation 72-7 : Preinduction Review of Selective 

Service Classification Orders 
and Related Procedural 
Matters 70 

Recommendation 72-8: Adverse Actions Against Federal 

Employees 73 

Consultant and Staff Reports in Support of Recom- 
mendations 71-1 Through 72-8 79 

71-1: Ernest Gellhom and Paul B. Larsen. Interlocutory 

Appeal Procedures in Administrative Hearings 81 

71-2: Donald A. Giannella. Agency Procedures Imple- 
menting the Freedom of Information Act: A 
Proposal for Uniform Regulations 119 

71-3: Memorandum in Support of Recommendation of 
Committee on Rulemaking Concerning Articu- 
lation of Agency Policies 175 

71-4: Stephen Kurzman. Uniform Minimum Procedures 
for Agencies Administering Discretionary Grant 
Programs 181 

Reports in Support of Views of the Administrative Con- 
ference on the "Report on Selected Independent Regu- 
latory Agencies" of the President's Advisory Council on 
Executive Organization 197 

Nathaniel L. Nathanson, The Administrative Court Pro- 
posal 198 

Glen O. Robinson, On Reorganizing the Independent 

Regulatory Agencies 218 



Norman C. Thomas, Politics, Structure, and Personnel 

in Administrative Regulation 267 

71-5: Abraham D. Sofaer. The Change-of-Status Adju- 
dication: A Case Study of the Informal Agency 
Process 303 

71-6: Ernest Gellhorn. Public Participation in Adminis- 
trative Proceedings 376 

Roger C. Cram ton. The Why, Where and How of 
Broadened Public Participation in the Adminis- 
trative Process 422 

71-7: Robert W. Hamilton. Rulemaking on a Record by 

the Food and Drug Administration 448 

71-8: Edward A. Tomlinson. Modification and Dissolu- 
tion of Administrative Orders and Injunctions 511 

71-9: Edward A. Tomlinson and Jerry L. Mashaw. The 
Enforcement of Federal Standards in Grant-in- 
Aid Programs: Suggestions for Beneficiary In- 
volvement 531 

72-1 : Robert W. Bennett, Broadcast Coverage of Admin- 
istrative Proceedings 625 

72-2 : Reid Peyton Chambers, Conflicts of Interest in the 
Administration of the Federal Trust Responsi- 
bility 659 

72-3: Phillip E. Johnson, Federal Parole Procedures 706 

72-4: Ralph S. Spritzer, Uses of the Summary Power to 
Suspend Rates : An Examination of Federal Reg- 
ulatory Agency Practices 765 

72-5: Robert W. Hamilton, Procedures for the Adoption 
of Rules of General Applicability: The Need for 
Procedural Innovation in Administrative Rule- 
making 834 

72-6: Harvey J. Goldschmid, An Evaluation of the Pres- 
ent and Potential Use of Civil Money Penalties as 
a Sanction by Federal Administrative Agencies, _ 896 

72-7 : Francis X. Beytagh, Jr., Judicial Review in Selective 

Service Cases 965 

72-8: Richard A. Merrill; Procedures for Adverse Actions 

Against Federal Employees 1007 

Bibliography of Selected Reports of Administrative 

Conference 1095 


[Public Law 89-554, September 6, 1966, 80 Stat. 388, as amended by 
Public Law 92-526 October 21, 1972, Title 5 U.S.C, Chapter 5, Sub- 
chapter III, Sections 571 through 576.1 

§ 571 Purpose. 

It is the purpose of this subchapter to provide suitable arrangements 
through which Federal agencies, assisted by outside experts, may coop- 
eratively study mutual problems, exchange information, and develop 
recommendations for action by proper authorities to the end that 
private rights may be fully protected and regulatory activities and 
other Federal responsibilities may be carried out expeditiously in the 
public interest. 

§ 572 Definitions. 

For the purpose of this subchapter — 

(1) "administrative program" includes a Federal function which in- 
volves protection of the public interest and the determination of rights, 
privileges, and obligations of private persons through rule making, 
adjudication, licensing, or investigation, as those terms are used in 
subchapter II of this chapter, except that it does not include a military 
or foreign affairs function of the United States ; 

(2) "administrative agency" means an authority as defined by sec- 
tion 551 ( 1 ) of this title ; and 

(3) "administrative procedure" means procedure used in carrying 
out an administrative program and is to be broadly construed to in- 
clude any aspect of agency organization, procedure, or management 
which may affect the equitable consideration of public and private 
interests, the fairness of agency decisions, the speed of agency action, 
and the relationship of operating methods to later judicial review, but 
does not include the scope of agency responsibility as established by 
law or matters of substantive policy committed by law to agency 

§ 573 Administrative Conference of the United States. 

(a) The Administrative Conference of the United States consists 
of not more than 91 nor less than 75 members appointed as set forth in 
subsection (b) of this section. 



(b) The Conference is composed of — 

(1) a full-time Chairman appointed for a 5-year term by the Presi- 
dent, b}' and with the advice and consent of the Senate. The Chairman 
is entitled to pay at the highest rate established by statute for the chair- 
man of an independent regulatory board or commission, and may con- 
tinue to serve until his successor is appointed and has qualified ; 

(2) the chairman of each independent regulatory board or commis- 
sion or an individual designated by the board or commission ; 

(3) the head of each Executive department or other administrative 
agency which is designated by the President, or an individual desig- 
nated by the head of the department or agency ; 

(4) when authorized by the Council referred to in section 575(b) 
of this title, one or more appointees from a board, commission, depart- 
ment, or agency referred to in this subsection, designated by the head 
thereof with, in the case of a board or commission, the approval of the 
board or commission ; 

(5) individuals appointed by the President to membership on the 
Council who are not otherwise members of the Conference ; and 

(6) not more than 36 other members appointed by the Chairman, 
Avith the approval of the Council, for terms of 2 years, except that the 
number of members appointed by the Chairman may at no time be 
less than one-third nor more than two-fifths of the total number of 
members. The Chairman shall select the members in a manner which 
will provide broad representation of the views of private citizens and 
utilize diverse experience. The members shall be members of the prac- 
ticing bar, scholars in the field of administrative law or government, 
or others specially informed by knowledge and experience with respect 
to Federal administrative procedure. 

(c) Members of the Conference, except the Chairman, are not en- 
titled to pay for service. Members appointed from outside the Federal 
Government are entitled to travel expenses, including per diem instead 
of subsistence, as authorized by section 5703 of this title for individuals 
serving without pay. 

§ 574 Powers and duties of the Conference. 

To carry out the purpose of this subchapter, the Administrative 
Conference of the United States may — 

( 1 ) study the efficiency, adequacy, and fairness of the administrative 
procedure used by administrative agencies in carrying out adminis- 
trative programs, and make recommendations to administrative agen- 
cies, collectively or individually, and to the President, Congress, or the 
Judicial Conference of the United States, in connection therewith, as 
it considers appropriate ; 


(2) arrange for interchange among administrative agencies of infor- 
mation potentially useful in improving administrative procedure ; and 

(3) collect information and statistics from administrative agencies 
and publish such reports as it considers useful for evaluating and 
improving administrative procedure. 

§ 575 Organization of the Conference. 

(a) The membership of the Administrative Conference of the United 
States meeting in plenary session constitutes the Assembly of the 
Conference. The Assembly has ultimate authority over all activities of 
the Conference. Specifically, it has the power to — 

(1) adopt such recommendations as it considers appropriate for 
improving administrative procedure. A member who disagrees with a 
recommendation adopted by the Assembly is entitled to enter a dis- 
senting opinion and an alternate proposal in the record of the Confer- 
ence proceedings, and the opinion and proposals so entered shall 
accompany the Conference recommendation in a publication or distri- 
bution thereof ; and 

(2) adopt bylaws and regulations not inconsistent with this sub- 
chapter for carrying out the functions of the Conference, including 
the creation of such committees as it considers necessary for the conduct 
of studies and the development of recommendations for consideration 
by the Assembly. 

(b) The Conference includes a Council composed of the Chairman 
of the Conference, who is Chairman of the Council, and 10 other 
members appointed by the President, of whom not more than one-half 
shall be employees of Federal regulatory agencies or Executive de- 
partments. The President may designate a member of the Council as 
Vice Chairman. During the absence or incapacity of the Chairman, or 
when that office is vacant, the Vice Chairman shall serve as Chairman. 
The term of each member, except the Chairman, is 3 years. When the 
term of a member ends, he may continue to serve until a successor is 
appointed. However, the service of any member ends when a change 
in his employment status would make him ineligible for Council mem- 
bership under the conditions of his original appointment. The Council 
has the power to — 

(1) determine the time and place of plenary sessions of the Confer- 
ence and the agenda for the sessions. The Council shall call at least one 
plenary session each year ; 

(2) propose bylaws and regulations, including rules of procedure 
and committee organization, for adoption by the Assembly ; 

(3) make recommendations to the Conference or its committees on 
a subject germane to the purpose of the Conference; 


(4) receive and consider reports and recommendations of commit- 
tees of the Conference and send them to members of the Conference 
with the views and recommendations of the Council ; 

(5) designate a member of the Council to preside at meetings of the 
Council in the absence or incapacity of the Chairman and Vice 
Chairman ; 

(6) designate such additional officers of the Conference as it con- 
siders desirable ; 

(7) approve or revise the budgetary proposals of the Chairman; 

(8) exercise such other powers as may be delegated to it by the 

(c) The Chairman is the chief executive of the Conference. In that 
capacity he has the power to — 

(1) make inquiries into matters he considers important for Confer- 
ence consideration, including matters proposed by individuals inside 
or outside the Federal Government ; 

(2) be the official spokesman for the Conference in relations with the 
several branches and agencies of the Federal Government and with 
interested organizations and individuals outside the Government, in- 
cluding responsibility for encouraging Federal agencies to carry out 
the recommendations of the Conference ; 

(3) request agency heads to provide information needed by the 
Conference, which information shall be supplied to the extent per- 
mitted by law ; 

(4) recommend to the Council appropriate subjects for action by 
the Conference ; 

(5) appoint, with the approval of the Council, members of commit- 
tees authorized by the bylaws and regulations of the Conference; 

(6) prepare, for approval of the Council, estimates of the budgetary 
requirements of the Conference ; 

(7) appoint and fix the pay of employees, define their duties and 
responsibilities, and direct and supervise their activities ; 

( 8 ) rent office space in the District of Columbia ; 

(9) provide necessary services for the Assembly, the Council, and 
the committees of the Conference ; 

"(10) organize and direct studies ordered by the Assembly or 
the Council, to contract for the performance of such studies with 
any public or private persons, firm, association, corporation, or 
institution under title III of the Federal Property and Adminis- 
trative Services Act of 1949, as amended (41 U.S.C. 251-260) , and 
to use from time to time, as appropriate, experts and consultants 


who may be employed in accordance with section 3109 of this title 
at rates not in excess of the maximum rate of pay for grade GS-15 
as provided in section 5332 of this title ; 

"(11) utilize, with their consent, the services and facilities of 
Federal agencies and of State and private agencies and instru- 
mentalities with or without reimbursement ; 

"(12) accept, hold, administer, and utilize gifts, devises, and 
bequests of property, both real and personal, for the purpose of 
aiding and facilitating the work of the Conference. Gifts and be- 
quests of money and proceeds from sales of other property received 
as gifts, devises, or bequests shall be deposited in the Treasury and 
shall be disbursed upon the order of the Chairman. Property ac- 
cepted pursuant to this section, and the proceeds thereof, shall be 
used as nearly as possible in accordance with the terms of the gifts, 
devises, or bequests. For purposes of Federal income, estate, or 
gift taxes property accepted under this section shall be considered 
as a gift, devise, or bequest to the United States; 

"(13) accept voluntary and uncompensated services, notwith- 
standing the provisions of section 3679 (b) of the Revised Statutes 
(31 U.S.C. 665(b);". 

(14) on request of the head of an agency, furnish assistance and ad- 
vice on matters of administrative procedures ; and 

(15) exercise such additional authority as the Council or Assembly 
delegates to him. 

The Chairman shall preside at meetings of the Council and at each 
plenary session of the Conference, to which he shall make a full report 
concerning the affairs of the Conference since the last preceding 
plenary session. The Chairman, on behalf of the Conference, shall 
transmit to the President and Congress an annual report and such 
interim reports as he considers desirable. 

§ 576 Appropriations. 

"There are authorized to be appropriated sums necessary not in 
excess of $700,000 for the fiscal year ending June 30, 1974, $805,000 
for the fiscal year ending June 30, 1975, $850,000 for the fiscal year 
ending June 30, 1976, $900,000 for the fiscal year ending June 30, 
1977, and $950,000 for the fiscal year ending June 30, 1978, and for 
each fiscal year thereafter, to carry out the purposes of this 

7 7 


As Revised June 8, 1972, y (^^^ — 7^ Y 

Section 1. Establishment and Objective 

The Administrative Conference Act, 5 U.S.C. §§ 571 et seq. (1970), 
78 Stat. 615 (1964), authorized the establishment of the Administra- 
tive Conference of the United States as a permanent, independent 
agency of the Federal Government. The purpose of the Administra- 
tive Conference is to improve the administrative procedure of Federal 
agencies to the end that they may fairly and expeditiously carry out 
their responsibilities to protect private rights and the public interest. 
The Administrative Conference Act provides for the membership, 
organization, powers and duties of the Conference. 

Section 2. Membership 

(a) general 

Each member is expected to participate in all respects according to 
his own views and not necessarily as a representative of any agency or 
other group or organization, public or private. Each member (other 
than a member of the Council) shall be appointed to one of the stand- 
ing committees of the Conference. 

(B) terms of non-government members 

The terms of non-Government members, who are appointed by the 
Chairman with the approval of the Council, shall terminate at 2-year 
intervals from June 30, 1970. Such members may be appointed for not 
more than three successive terms. 

(C) eligibility and replacements 

(1) A member (other than a member of the Council) who is desig- 
nated by a Federal agency shall become ineligible to continue as a 
member of the Conference in that capacity or under that designation 
if he leaves the service of the agency or department. Designations and 


re-designations of members shall be filed with the Chairman promptly, 
but not less than 30 days prior to the first session of the Conference at 
which such member shall sit, except that in exceptional circumstances 
the Council may permit a newly designated or re-designated member 
to participate in any session. 

(2) A person appointed as a non-Government member shall become 
ineligible to continue in that capacity if he enters full-time Govern- 
ment service. In the event a non-Government member of the Con- 
ference resigns or becomes ineligible to continue as a member, the 
appointing authority shall appoint a successor for the remainder of 
the term. 


Members may not act through alternates at plenary sessions of the 
Conference. Where circumstances justify, an alternate may be per- 
mitted, with the approval of a committee, to participate for a member 
in a meeting of the committee, but such alternate shall not have the 
privilege of a vote in respect to any action of the committee. 

Section 3. Committees 

The following shall constitute the standing committees of the 
Conference : 

1. Committee on Agency Organization and Personnel ; 

2. Committee on Claims Adjudications; 

3. Committee on Compliance and Enforcement Proceedings ; 

4. Committee on Grant and Benefit Programs ; 

5. Committee on Informal Action ; 

6. Committee on Judicial Review ; 

7. Committee on Licenses and Authorizations ; 

8. Committee on Ratemaking and Economic Regulation ; and 

9. Committee on Rulemaking and Public Information. 

The activities of the committees shall not be limited to the areas 
described in their titles, and the Chairman may redefine the responsi- 
bilities of the committees and assign new or additional projects to 
them. With the approval of the Council, the Chairman may establish 
special ad hoc committees and assign special projects to such com- 
mittees. The Chairman shall coordinate the activities of all com- 
mittees to avoid duplication of effort and conflict in their activities. 


Section 4. Liaison Arrangements 

The Chairman, with the approval of the Council, may make liaison 
arrangements with representatives of the Congress, the judiciary, and 
Federal agencies which are not represented on the Conference. Per- 
sons appointed under these arrangements may participate in the 
activities of a designated committee without vote ; and may participate 
in the deliberations of the Conference with privileges of the floor, 
but without vote. 

Section 5. General 

(A) meetings 

All sessions of the Assembly shall be public. Privileges of the floor, 
however, extend only to: (1) members of the Conference, (2) persons 
appointed pursuant to section 4, (3) consultants and staff members 
insofar as matters on which they have been engaged are under con- 
sideration, and (4) persons who, prior to the commencement of the 
meeting, have obtained the approval of the Chairman and who speak 
with the unanimous consent of the Assembly. 


A majority of the members of the Conference shall constitute a 
quorum of the Assembly ; a majority of the Council shall constitute a 
quorum of the Council. 


The Conference may amend the bylaws provided that 30 days' notice 
of the proposed amendment shall be given to all members of the 
Assembly by the Chairman. 


Robert's Rules of Order shall govern the proceedings of the 
Assembly to the extent appropriate. 

493-361 O - 73 - 2 

(December 31, 1972) 



Edward L. Morgan, Vice-Chairman, Deputy Assistant to the Presi- 
dent for Domestic Affairs. 

Charles D. Ablard, Associate Deputy Attorney General, Department 
of Justice. 

Ralph E. Erickson, Deputy Attorney General, Department of Justice. 

Walter Gellhorn, Betts Professor of Law, Columbia University 
School of Law, New York, N.Y. 

Dale W. Hardin, Commissioner, Interstate Commerce Commission. 

Marion Edwyn Harrison, lawyer, Washington, D.C. 

Harold L. Russell, lawyer, Atlanta, Ga. 

Richard B. Smith, lawyer. New York, N.Y. 

Richard C. Van Dusen, Under Secretary, Department of Housing 
and Urban Development. 


John F. Cushman 

Executive Director 

Richard K. Berg 

Executive Secretary 

Margie W. Barnes 

Executive Assistant 



(December 31, 1972) 

Charles E. Allen, General Counsel, Federal Home Loan Bank Board. 

William H. Allen, lawyer, Washington, D.C. 

Carl A. Auerbach, Acting Dean, University of Minnesota Law School, Min- 
neapolis, Minn. 

John W. Barnum, General Counsel, Department of Transportation. 

St. John Barrett, Deputy General Counsel, Department of Health, Education, 
and Welfare. 

Frank A. Bartimo, Assistant General Counsel, Department of Defense. 

Charles F. Bingman, Chief, Government Organization Branch, Office of Man- 
agement and Budget. 

James A. Bistline, Assistant Vice President — General Counsel, Southern Rail- 
way System, Washington, D.C. 

Warren E. Blair, Chief Administrative Law Judge, Securities & Exchange 

Charles N. Brower, Deputy Legal Adviser, Department of State. 

William H. Brown, III, Chairman, Equal Employment Opportunity. 

Jack K. Busby, President, Pennsylvania Power & Light Co., Allentown, Pa. 

Donald A. Campbell, Judicial Officer, Department of Agriculture. 

William E. Casselman, II, General Counsel, General Services Administration. 

John J. Corcoran, General Counsel, Veterans Administration. 

Louis A. Cox. General Counsel, United States Postal Service. 

Eldon H. Crowell. lawyer, Washington, D.C. 

Kenneth Culp Davis, Professor, I'niversity of Chicago Law School, Chicago, 111. 

David S. Dennison, Commissioner, Federal Trade Commission. 

John H. Fanning, Member, National Labor Relations Board. 

Ben C. Fisher, lawyer, Washington, D.C. 

Warner W. Gardner, lawyer, Washington, D.C. 

Whitney Gillilland, Vice Chairman, Civil Aeronautics Board. 

Robert C. Gresham, Commissioner, Interstate Commerce Commission. 

Richard L. Griffith, lawyer, Honolulu, Hawaii. 

Thomas E. Harris. General Counsel, AFL-CIO, Washington, D.C. 

Geoffrey C. Hazard, Jr., Professor, Yale Law School, New Haven, Conn. 

George H. Hearn, Commi.ssioner, Federal Maritime Commission. 

Ragen a. Henry, lawyer, Philadelphia, Pa. 

Arthur E. Hess, Deputy Commissioner. Social Security Administration. 

Carla Hills, lawyer, Los Angeles, Calif. 

S. Neil Hosenball, Deputy General Counsel, National Aeronautics and Space 

Richard H. Keatinge, lawyer, Los Angeles, Calif. 

Cornelius B. Kennedy, lawyer, Washington, D.C. 

Earl W. Kintner, lawyer, Washington, D.C. 

Alan G. Kirk, Deputy General Counsel, Environmental Protection Agency. 



John A. Knebel, General Counsel, Small Business Administration. 

Victor H. Kramer, Professor of Law, Georgetown University Law Center, 

Washington, D.C. 
Arthur Leff, Chief Administrative Law Judge, National Labor Relations Board. 
Sol Lindenbaxjm, Executive Assistant to the Attorney General, Department 

of Justice. 
Chablotte Tuttle Lloyd, Assistant General Counsel, Department of the 

Lee Loevtngee, lawyer, Washington, D.C. 

Philip A. Loomis, Jr., Commissioner, Securities & Exchange Commission. 
Robert L. McCabty, lawyer, Washington, D.C. 

Malcom Mason, Associate General Counsel, OflBce of Economic Opportunity. 
David O. Maxwell, General Counsel, Department of Housing and Urban 

Mitchell Melich, Solicitor, Department of the Interior. 
Anthony L. Mondello, General Counsel, U.S. Civil Service Commission. 
John N. Nassikas, Chairman, Federal Power Commission. 
C. Roger Nelson, lawyer, Washington, D.C. 

L. Clair Nelson, U.S. Plywood-Champion Papers, Inc., New York, N.Y. 
William A. Nelson, National Airlines, Inc., Miami, Fla. 
Leonard Niedeblehner, Acting General Counsel, Department of Defense. 
Thomas J. O'Connell, General Counsel, Board of Governors of the Federal 

Reserve System. 
Owen Olpin, Professor of Law, University of Utah Law School, Salt Lake 

City, Utah. 
Nathan Ostroff, Chairman, Appeals Board, Department of Commerce. 
Max D. Paglin, Atomic Energy Commission. 

John W. Pettit, General Counsel, Federal Communications Commission. 
John H. Powell, Jr., General Counsel, U.S. Commission on Civil Rights. 
David Previant, lawyer, Milwaukee, Wis. 

Edwin F. Rains, Deputy Commissioner of Customs, Department of the Treasury. 
James T. Ramey, Commissioner, U.S. Atomic Energy Commission. 
Martin F. Richman, lawyer. New York, N.Y. 
Ohables R. Ross, lawyer, Shelburne, Vt. 
Richard F. Schubert, Solicitor, Department of Labor. 
Bernard G. Segal, lawyer, Philadelphia, Pa. 
Ashley Sellers, lawyer, Washington, D.C. 

Edward M. Shulman, General Counsel, Department of Agriculture. 
David F. Sive, lawyer, New York, N.Y. 
Otis M. Smith, General Motors Corporation, Detroit, Mich. 
Richard E. Stewart, Vice President & General Counsel, First National City 

Bank, New York, N.Y. 
Earl J. Thomas, Director, Office of Inspection, Department of the Interior. 
Peter F. Tufo, lawyer, Washington, D.C. 
John P. Vukasin, Jr., Chairman, California Public Utilities Commission, San 

Francisco, Calif. 
Chables a. Webb, President, National Association of Motor Bus Owners, Wash- 
ington, D.C. 
Frank Wille, Chairman, Federal Deposit Insurance Corporation. 
Henry N. Williams, Deputy General Counsel, Selective Service System. 
Jerre S. Williams, Professor of Law, University of Texas Law School, Austin, 




(July 1, 1970-December 31, 1972) 

Position at time of membership 

G. Harbold Carswexl. lawyer, Tallahassee, Fla. 

RoGEai G. Cramtox, Chairman, Administrative Conference, Assistant General 
Counsel, Ofl3oe of Legal Counsel, Department of Justice. 

WiLLARD Deason, Commissioner, Interstate Commerce Commission. 

RosEL H. Hyde, Chairman, Federal Communications Commission, lawyer, Wash- 
ington, D.C. 

Joe M. Kilgore, lawyer, Austin. Tex. 

Leonard H. Marks, Director, U.S. Information Agency. Lawyer, Washington, 

William H. Rehnqihst, Assistant Attorney General, Office of Legal Counsel, 
Department of Justice. 

Whitnet North Seymour, Sr., lawyer, New York, l^.Y. 

Frank M. Wozencraft. Vice Chairman, Administrative Conference, Lawyer 
Houston, Tex. 

JiaiRE S. Williams, Chairman, Administrative Conference, Professor of Law, 
University of Texas School of Law, Austin, Tex. 



(July 1, 1970-December 31, 1972) 

Carolyn E. Agger, lawyer, Washington, D.C. 

C. Paul Barker, lawyer. New Orleans, La. 

Charles F. Brannan, lawyer. Denver, Colo. 

Theodore F. Brophy. lawyer, New York, N.Y. 

Charles W. Bttcy, Asst. General Counsel. Department of Agriculture. 

John A. Buggs, Acting Staff Director, U.S. Commission on Civil Rights. 

J. W. Bullion, lawyer, Dallas, Tex. 

Clark Byse, Professor, Harvard Law School. 

Jean Camper Cahn, lawyer. Washington, D.C. 

John A. Carver, Commissioner. Federal Power Commission. 

John T. Chadwell, lawyer. Chicago, 111. 

Anthony G. Chase. Deputy Administrator, Small Business Administration. 

Harold J. Cohen, General Attorney, American Telephone & Telegraph Co. 

Donald C. Cook. President, American Electric Power Co.. Inc., New York, N.Y. 

Arthur H. Courshon, Chairman of Board, Washington Federal Saving and 

Loan Association of Miami Beach. 
William J. Curtin, lawyer, Washington, D.C. 


Philip Elman, Commissioner, Federal Trade Commission. 

Norman A. Flaningam, lawyer, Washington, D.C 

Thomas J. Flavin, Judicial OflBcer, Department of Agriculture. 

Arthur B. Focke, General Counsel, OflBce of Management and Budget. 

Jefferson B. Fordham, Dean, University of Pennsylvania Law School, Phila- 
delphia, Pa. 

William T. Gennetti, Deputy General Counsel, Small Business Administration. 

Richard H. Gimer, lawyer, Washington, D.C. 

Howard A. Glickstein, Staff Director, U.S. Commission on Civil Rights. 

George A. Graham, Executive Director, National Academy of Public 

Robert W. Graham, lawyer, Seattle, Wash. 

Patricia Roberts Harris, lawyer, Washington, D.C. 

Ferrell Heady, President, University of New Mexico, Albuquerque, N. Mex. 

Miles W. Kirkpatrick, Chairman, Federal Trade Commission. 

John T. Koehler, lawyer, Washington, D.C- 

Jim C. Langdon, Chairman, Texas Railroad Commission, Austin, Tex. 

Arthur W. Leibold, Jr., General Counsel, Federal Home Loan Bank Board. 

J. Edward Lyerly, Deputy Legal Adviser for Administration, Department of 

Ross L. Malone, Vice President, General Motors Corporation. 

Hart T. Mankin, General Counsel, General Services Administration. 

Wilson Matthews, Director, Hearing Examiners OflBce, U.S. Civil Service 

Edward B. Miller, Chairman, National Labor Relations Board. 

William R. Ming, Jr., lawyer, Chicago, 111. 

James B. Minor, Assistant General Counsel for Regulation, Department of Trans- 

Gerald D. Morgan, Vice President — Government Affairs, Amtrak. 

Walter H. Morse, General Coun.sel, Selective Service System. 

Peter G. Nash, Solicitor, Department of Labor. 

Nathaniel L. Nathan son. Professor of Law, Northwestern University School 
of Law, Chicago. 111. 

David A. Nelson, General Counsel, U.S. Postal Service. 

Samuel R. Pierce, Jr., lawyer. New York, N.Y. 

Emmette S. Redford, Professor of Government, University of Texas, Austin, 

Fred B. Rhodes, Deputy Administrator of Veterans' Affairs, Veterans' Admin- 

Charles S. Rhyne, lawyer, Washington, D.C. 

F. Vinson Roach. Vice President, Northern Natural Gas Co.. Omaha, Nebr. 

F. Merritt Ruhlen. Hearing Examiner. Civil Aeronautics Board. 

Howard Schnoor, Director, Government Organization Staff, Office of Manage- 
ment and Budget. 

Laurence H. Silberman, Solicitor, Department of Labor. 

Curtis W. Tarr, Director, Selective Service System. 

Starr Thomas. Vice President, Santa Fe Railway, Chicago, 111. 

Sherman Unger, General Counsel, Department of Housing and Urban Develop- 

Thomas H. Wall, lawyer, Washington, D.C. 

Howard C. Westwood, lawyer, Washington, D.C. 


JUily-47-^970-Decemb€r ;31, 1972 



(Adopted May 7, 1971) 

Interlocutory appeal procedures for agency review of rulings by 
presiding officers must balance the advantages derived from immedi- 
ate correction of an erroneous ruling against interruption of the 
hearing process and other costs of piecemeal review. Striking an ap- 
propriate balance between these competing concerns requires that the 
exercise of discretion in individual cases be carefully circumscribed. 
Procedures that delegate the responsibility for allowing interlocutory 
appeals to presiding officers, with a reserved power in the agency to 
handle exceptional situations, have proven most satisfactory. 


Each agency which handles a substantial volume of cases that are 
decided on the basis of a record should adopt interlocutory appeal pro- 
cedures based on the following principles : 

1. Presiding officers should be authorized to rule initially on all 
questions raised in the proceeding. A ruling by the presiding officer, 
supported by a reasoned statement, usually should precede interlocu- 
tory review of the question raised. 

2. In general, interlocutory appeal from a ruling of the presiding 
officer should be allowed only when the presiding officer certifies that 
(a) the ruling involves an important question of law or policy con- 
cerning which there is substantial ground for difference of opinion; 
and (b) an immediate appeal from the ruling will materially advance 
the ultimate termination of the proceeding or subsequent review will 
be an inadequate remedy. 

1 This recommendation supersedes section 5 of Recommendation 20 and paragraphs 2(6) 
and 7(b) of Recommendation 21, adopted June 2-3, 1&70, insofar as they deal with inter- 
locutory appeals. 



3. Allowance of an interlocutory appeal should not stay the pro- 
ceeding unless the presiding officer determines that extraordinary cir- 
cumstances require a postponement. A stay of more than 30 days must 
be approved by the review authority. 

4. If the number of interlocutory appeals in an agency is substan- 
tial, the authority to affirm, modify, or reverse the presiding officer's 
interlocutory ruling should be delegated, to the extent permitted by 
law, to a review authority designated by the agency. 

5. Unless the review authority orders otherwise in the particular 
case, the review authority should decide the interlocutory appeal on 
the record and briefs submitted to the presiding officer without further 
briefs or oral argument. The review authority should summarily 
dismiss an interlocutory appeal whenever it determines that the pre- 
siding officer's certification was improvidently granted or that con- 
sideration of the appeal is unnecessary. If the review authority does 
not specify otherwise within 30 days after the certification or allowance 
of the interlocutory appeal, leave to appeal from the presiding officer's 
interlocutory ruling should be deemed to be denied. 

6. Interlocutory review by petition to the review authority without 
certification by the presiding officer should be restricted to exceptional 
situations in which (a) vital public or private interests might other- 
wise be seriously impaired, and (b) the review authority has not had 
an opportunity to develop standards which the presiding officer can 
apply in determining whether interlocutory review is appropriate. 



(Adopted May 7, 1971) 

The Freedom of Information Act, 5 U.S.C. § 552, expresses impor- 
tant policies with respect to the availability to the public of records of 
Federal agencies. To achieve free access to and prompt production of 
identifiable government records in accordance with the terms and 
policies of the Act, each agency - should conform to the statutory policy 
encouraging disclosure, adopt procedural regulations for the expedi- 
tious handling of information requests, and review the fees charged 
for providing information. 

- The term agency as used herein denotes an agency, executive department, or a separate 
administration or bureau within a department which has adopted its own administrative 
structure for handling requests for records. 



A. General Principles 

Agencies should conform to the following principles in handling 
requests for information : 

1. Each agency should resolve questions under the Freedom of 
Information Act with a view to providing the utmost information. 
The exemptions authorizing nondisclosure should be interpreted 

2. Each agency should make certain that its rules provide the fullest 
assistance to inquirers, including information relating to where re- 
quests may be filed. It should provide the most timely possible action 
on requests for information. 

3. Wlien requested information is partially exempt from disclosure 
the agency should, to the fullest extent possible, supply that portion of 
the information which is not exempt. 

4. If it is necessary for an agency to deny a request, the denial 
should be promptly made and the agency should specify the reason for 
the denial. Procedures for review of denials within the agency should 
be specified and any such review should be promptly made. 

5. Fees for the provision of information should be held to the mini- 
mum consistent with the reimbursement of the cost of providing the 
information. Provision should be made for waiver of fees when this 
is in the public interest. 

B. Guidelines for Handling of Information Request 

Each agency should adopt procedural rules to effectuate the prin- 
ciples stated in Part A. To assist in this task the following guidelines 
are set forth as a model of the kinds of procedures that are appropriate 
and would accomplish this purpose. 

1. Ag&ncy asfsistance in making request for records 

Each agency should publish a directory designating names or titles 
and addresses of the particular officers and employees in its Washing- 
ton office and in its various regional and field offices to whom requests 
for information and records should be sent. Appropriate means 
should be used to make the directory available to members of the 
public who would be interested in requesting information or records. 

Each agency should direct one or more members of its staff to take 
primary responsibility for assisting the public in framing requests for 
identifiable records containing the information that they seek. The 


names or titles and addresses of these staff members should be included 
in the public directory referred to above. 

2. Form of request 

a. No standard form 

No agency should require the use of standard forms for making 
requests. Any written request that identifies a record sufficiently for 
the purpose of finding it should be acceptable. A standard form may be 
offered as an optional aid. 

b. Categorical requests 

i. Requests calling for all records falling within a reasonably 
specific category should be regarded as conforming to the statutory 
requirement of "identifiable records" if the agency would be reason- 
ably able to determine which particular records come with the request 
and to search for an collect them without unduly burdening or inter- 
fering with agency operations because of the staff time consumed or 
the resulting disruption of files. 

ii. If any agency responds to a categorical request by stating that 
compliance would unduly burden or interfere with its operations, it 
should do so in writing, specifying the reasons why and the extent to 
which compliance would burden or interfere with agency operations. 
In the case of such a response the agency should extend to the requester 
an opportunity to confer with it in an attempt to reduce the request to 
manageable proportions by reformulation and by outlining an orderly 
procedure for the production of documents. 

3. Partial disclosure of exempt records and files 

Where a requested file or record contains exempt information that 
the agency wishes to maintain confidential, it should offer to make 
available the file or a copy of the record with appropriate deletions if 
this can be done without revealing the exempt information. 

4. Time for reply to request 

Every agency should either comply with or deny a request for 
records wnthin ten working days of its receipt unless additional 
time is required for one of the following reasons : 

a. The requested records are stored in whole or part at other loca- 
tions than the office having charge of the records requested. 

b. The request requires the collection of a substantial number of 
specified records. 

c. The request is couched in categorical terms and requires an 
extensive search for the records responsive to it. 


d. The requested records have not been located in the course of a 
routine search and additional efforts are being made to locate them. 

e. The requested records require examination and evaluation by 
personnel having the necessary competence and discretion to determine 
if they are : a) exempt from disclosure under the Freedom of Informa- 
tion Act and b) should be withheld as a matter of sound policy, or 
revealed only with appropriate deletions. 

When additional time is required for one of the above reasons, tne 
agency should acknowledge the request in writing within the ten-day 
period and should include a brief notation of the reason for the delay 
and an indication of the date on which the records would be made 
available or a denial would be forthcoming. 

The ten-day time period specified above should begin to run on tne 
day that the request is received at that office of the agency having 
charge of the records. When a request is received at an office not having 
charge of the records, it should promptly forward the request to the 
proper office and notify the requester of the action taken. 

If an agency does not reply to or acknowledge a request within the 
ten-day period, the requester may petition the officer handling appeals 
from denials of records for appropriate action on the request. If an 
agency does not act on a request within an extended deadline adopted 
for one of the reasons set forth above, the requester may petition the 
officer handling appeals from denials of records for action on the 
request without additional delay. If an agency adopts an unreasonably 
long extended deadline for one of the reasons set forth above, the re- 
quester may petition the officer handling appeals from denials of 
records for action on the request within a reasonable period of time 
from acknowledgment. 

An extended deadline adopted for one of the reasons set forth above 
would be considei-ed reasonable in all cases if it does not exceed ten 
additional working days. An agency may adopt an extended deadline 
in excess of the ten additional working days (i.e. a deadline in excess 
of twenty working days from the time of initial receipt of the request) 
where special circumstances would reasonably warrant the more ex- 
tended deadline and they are stated in the written notice of the 

5. Initial denials of requests 

a. Form of denial 

A reply denying a written request for a record should be in writing 
and should include : 


i. A reference to the specific exemption under the Freedom of 
Information Act authorizing the -svithholdino; of the record and a brief 
explanation of how the exemption applies to the record withheld. 

ii. An outline of the appeal procedure within the agency and of 
the ultimate availability of judicial review in either the district in 
which the requester resides or has a principal place of business, or in 
which the agency records are situated. 

If the requester indicates to the agency that he wishes to have a 
brief written statement of the reasons why the exempt record is being 
withheld as a matter of discretion where neither a statute nor an 
executive order requires denial, he will be given such a statement. 

b. Collection of denials 

A copy of all denial letters and all written statements explaining 
why exempt records have been withheld should be collected in a single 
central-office file. 

c. Denials; protection of privacy 

Where the identity of a requester, or other identifying details related 
to a request, would constitute an unwarranted invasion of personal 
privacy if made generally available, as in the case of a request to exam- 
ine one's own medical files, the agency should delete identifying details 
from copies of the request and written repsonses to it that are made 
available to requesting members of the public. 

6. I ntra-^agency appeals 

a. Designation of officer for appeals 

Each agency should publicly designate an officer to whom a requester 
can take an appeal from a denial of records. 

b. TiTYie for action on appeals 

There should be only one level of intra-agency appeal. Final action 
should be taken within twenty working days from the time of filing the 
appeal. Where novel and very complicated questions have been raised, 
the agency may extend the time for final action for a reasonable period 
beyond twenty working days upon notifying tlie requester of the 
reasons for the extended deadline and the date on which a final response 
will be forthcoming. 

c. Action on appeals 

Tlie grant or denial of an appeal should be in writing and set forth 
the exemption relied on, how it applies to the record withheld, and the 


reasons for asserting it. Copies of both grants and denials on appeal 
should be collected in one file open to the public and should be indexed 
according to the exemptions asserted and, to the extent feasible, ac- 
cording to the type of records requested. 

d. Necessity for prompt action on petitions complaining of delay 

Where a petition to an appeals officer complaining of an agency's 
failure to respond to a request or to meet an extended deadline for 
responding to a request does not elicit an appropriate response within 
ten days, the requester may treat his request as denied and file an 
appeal. Where a petition to an appeals officer complaining of the 
agency's imposition of an unreasonably long deadline to consider 
assertion of an exemption does not bring about a properly revised 
deadline, the requester may treat his request as denied after a reason- 
able period of time has elapsed from his initial request and he may 
then file an appeal. 

C. Fees for the Provision or Information 

Each agency should establish a fair and equitable fee schedule 
relating to the provision of information. To assist the agencies in this 
endeavor, a committee composed of representatives from the Office of 
Management and Budget, the Department of Justice and the General 
Services Administration, should establish uniform criteria for de- 
termining a fair and equitable fee schedule relating to requests for 
records that would take into account, pursuant to 31 U.S.C. § 483a 
(1964), the costs incurred by the agency, the value received by the 
requester and tlie public interest in making the information freely and 
generally available. The Committee should also review agency fees to 
determine if they comply with the enunciated criteria. These criteria 
might include the following: 

1. Fees for copying documents. In view of the public interest in 
making government information freely available, the fee charged for 
reproducing documents in written, typewritten, printed or other form 
that permits copying by duplicating processes, should be uniform 
and not exceed the going commercial rate, even where such a charge 
would not cover all costs incurred by particular agencies. 

2. No fee for routine search. In view of the public interest in mak- 
ing government held information freely available, no charge should 
be made for the search time and other incidental costs involved in the 
routine handling of a request for a specific document. 


3. No fee for screening out exempt records. As a rule, no charge 
should be made for the time involved in examining and evalulating 
records for the purpose of determining whether they are exempt from 
disclosure under the Freedom of Information Act and should be with- 
held as a matter of sound policy. Where a broad request requires quali- 
fied agency i^ersonnel to devote a substantial amount of time to 
screening out exempt records and considering whether they should be 
made available, the agency in its discretion may include in its fee a 
charge for the time so consumed. An important factor in exercising 
this discretion and determining the fee should be whether the intended 
use of the requested records will be of general public interest and bene- 
fit or whether it will be of primary value to the requester. 


(Adopted May 8, 1971) 

Agencies of the Federal Government should strive to act on the 
basis of articulated policies and standards. Concerns of good govern- 
ment and efficient management support this general principle, as do 
the developing views of the Federal courts. 


Agency policies which affect the public should be articulated and 
made known to the public to the greatest extent feasible. To this end, 
each agency which takes actions affecting substantial public or private 
interests, whether after hearing or through informal action, should, 
as far as is feasible in the circumstances, state the standards that will 
guide its determinations in various types of agency action, either 
through published decisions, general rules or policy statements other 
than rules. Each such agency from time to time should review its prec- 
edents, rules and policy statements to assure that they accurately 
reflect the agency's developing experience. If rulemaking is used for 
these purposes, each agency should establish and publish general or 
particular procedures (whether or not such procedures are required 
by statute) that define the extent and manner of public participation 
appropriate in the circumstances. 




(Adopted May 8, 1971) 

Agencies that administer grant programs employ disparate and 
sometimes inadequate procedures in notifying applicants of available 
funds, stating policies for award of grants, informing applicants of 
actions taken on applications, and other matters. Adoption of more 
uniform, minimum procedures would be helpful to the agencies and 
would assist applicants, who often must deal with a number of dif- 
ferent agencies. The recommendation applies to all grant programs 
which involve the exercise of some discretion in their administration. 
It is not intended to apply to Federal grant-in-aid programs that are 
wholly mandatory, i.e., dispensed in accordance with a statutory for- 
mula without any discretion on the part of the agency. 


Agencies should examine and revise their grant procedures to 
achieve to the maximum extent practicable the following objectives : 

1. Public Notice. Agencies should publish a notice in the Federal 
Register (or in other publications that, in the judgment of the agency, 
have wider distribution among potential grantees) of the availability 
of grant funds at the outset of a new grant program, each time addi- 
tional funds become available, and each time a deadline is established 
for submission of applications for funds. When an agency elects to 
publish elsewhere than in the Federal Register, it should publish in 
the Federal Register a statement specifying the other publication or 
publications in which it will publish. 

2. Development of Criteria by Rulemaking. Unless otherwise pro- 
vided by statute, agencies should issue regulations, pursuant to the 
notice and opportunity to comment on provisions of the Administrative 
Procedure Act (5 U.S.C. § 553), specifying: (a) the procedures to be 
followed by applicants, and (b) criteria or standards, and priorities 
among criteria or standards, for the selection of grantees under each 
grant program. Agencies should review and, when appropriate, re- 
issue such regulations at least once every five years. 

3. Avoidance of Conflict of Interest. Agencies should review their 
practices regarding utilization of advisory committees to ensure that 
they are in full compliance with existing conflict-of-interest 

493-361 O - 73 


4. Notification of Applicants. Agencies should notify applicants in 
writing of the award, rejection, modification, non-renewal or termi- 
nation of grants, or the disallowance of expenditures under grants 
specifying the grounds for such action. A more detailed statement 
of reasons should be made available upon request by the applicant. 

5. Public Information. Unless otherwise provided by statute and 
subject to the exemptions contained in the Freedom of Information 
Act, 5 U.S.C. § 552(b), agencies should maintain and make available 
to public inspection the notifications specified in paragraph 4. 


(Adopted by the Conference May 7, 1971) 

A. Agency Structure 

The Ash Council recommends that the independent regulatory com- 
missions in the transportation, power, securities and consumer protec- 
tion fields be transformed into executive agencies headed by single 
administrators responsible to the President. 

The Conference is not persuaded that a case has been made for 
general application of such a fundamental alteration in structure. 

1. The status of the regulatory commissions raises complex issues 
of political theoi-y and practice that cannot be evaluated solely in 
terms of managerial efficiency. Those uses may be grouped for con- 
venience under the headings of "independence" and "collegiality" (or 
multi-membership as distinct from a single chief officer). "Independ- 
ence" — a matter of degree and in part a state of mind — has both posi- 
tive and negative aspects. Detachment from external influences in 
making particularized decisions is generally considered to be desirable. 
Diffusion of responsibility that may produce hesitant or uncoordinated 
governmental policies is generally regarded as undesirable. Wliether 
or not an agency is independent in these respects, however, is not ex- 
clusively determined by whether the agency is located within or out- 
side the Executive Branch. Persuasive evidence has not yet been 
adduced to show that the independent commissions, to a significantly 
greater degree than executive agencies, have achieved the desired 
detachment or produced the weak or discordant policies. 

As for collegiality, consideration must be given to values inherent 
in an official body that is not dominated by a single will. Among those 
values are diversity of background and experience, an open decisional 
process, and a tendency toward moderation in policy. 

Further study, including empirical examination of the relative ef- 
fectiveness of independent commissions and executive agencies per- 
forming comparable regulatory functions, is required before it may 
be concluded that either form is generally the more desirable. 



2. The deficiencies of regulation by collegial bodies cannot be 
attributed solely or primarily to faulty structure ; the same deficiencies 
may be observed in regulatory agencies headed by single administra- 
tors responsible to the President. The view that substitution of a 
single administrator would solve regulatory problems is simplistic, 
unsupported by empirical data, and overlooks other plausible explana- 
tions of regulatory ills, especially the inherent difficulties of regulating 
activities having a vast impact on the economy and the absence in many 
areas of legislative definition of regulatory goals. Structural altera- 
tion in itself offers only possibilities for limited improvement in regu- 
latory performance; it is no substitute for a thorough and critical 
reexamination of the statutory framework in which the agencies 
operate and of the policies they are directed to carry out. 

3. We believe, as does the Ash Council, that formulating regulatory 
policies by rules or other pronouncements of broad applicability rather 
than by the slow method of case-by-case adjudication is often desirable. 
The collegial structure of an agency need not, in our opinion, signifi- 
cantly diminish its capability to anticipate problems or to announce 
conclusions concerning them. Recommendations of the Administrative 
Conference have pointed the way toward fair and effective use of 
agencies' policy-making power. 

4. While the Conference is not persuaded that the proposed form 
of agency organization — a single administrator responsible to the 
President — is generally superior to the collegial form, it may offer 
advantages in specific areas of regulation, particularly where vigorous 
departures from existing regulatory techniques are called for. Whether 
an existing regulatory framework should or should not be continued 
is largely dependent upon substantive rather than organizational 
considerations. If a decision were made, for example, to eliminate vari- 
ous restraints that now affect the various modes of transportation, the 
remaining regulatory controls might practicably be vested in a new 
agency structured differently from those now in existence. With respect 
to the other regulatory agencies, a major realignment of regulatory 
responsibilities is not proposed and a convincing case has not as 
yet been made for replacement of the collegial form with a single 

5. Prior experience suggests that the quality of personnel in fed- 
eral regulatory agencies, whether headed by a single administrator 
or by a collegial body, is highly variable from agency to agency and 
from time to time. Other factors appear to have a greater influence 
than agency structure on personnel quality. 

6. One traditional ground of attack on the independent regulatory 
commission, particularly applied to enforcement functions of such 


agencies as the Federal Trade Commission, is the charge that unfair- 
ness to respondents may result when agency heads exercise prosecutory 
and rulemaking functions along with that of adjudication. Whatever 
the merits of this charge as a general matter, the concentration of 
regulatory authority in a single administrator increases at least the 
appearance, though not necessarily the reality, of a merger of incon- 
sistent functions. 

7. The advantages of the collegial form, if it is to be retained, can 
best be achieved with a limited number of members, ordinarily no 
more than five. A larger complement of members should require an 
affirmative demonstration of functional advantage and not be justified 
merely on the basis of tradition. 

8. Improved management of the independent regulatory commis- 
sions will result from the expansion of present policies that delegate 
responsibilities for internal agency management to the chairmen and 
to key subordinate officials of the respective agencies. 

B. Agency Decisional Process 

The Ash Council recommends that agency review of initial decisions 
of hearing examiners be limited in scope and in time. The agency head 
or heads would review cases primarily for consistency with agency 
policy and would be required to take final action within a period of 
30 days, stating reasons for modification or reversal of the hearing 
examiner. Even if a case were remanded for further action at a lower 
level, a final decision would have to be made within a further period 
of not more than 45 days. 

The Conference believes that the underlying objectives of the pro- 
posed review procedure can be obtained by alternative procedures 
without the sacrifice of decisional quality and procedural fairness that 
the proposed procedure would entail. 

1. Prior experience with inflexible time periods as a device to ex- 
pedite decisions in complex matters has proved unsatisfactory. Rigid 
time limitations of broad application, unrelated to the complexity 
of individual cases or of types of cases, are likely to be unworkable. 
The desirability of time limitations tailored to the requirements of 
particular types of proceedings, however, will be investigated further 
by the Administrative Conference. 

2. Limitation of party participation to the period prior to an initial 
decision is undesirable as well as unfair. Wise decisions in complex 
regulatory cases are largely dependent upon the illuminating and 
sharpening of issues which are most suitably provided by the parties. 


including agency staff who have functioned as parties in the particular 
proceeding. Parties who are denied participation in the final decision- 
making through public procedures may be tempted to influence the 
agency through ex parte means. 

3. Other procedural devices, such as development of policy through 
rulemaking rather than adjudication, provision that decisions by hear- 
ing examiners are final unless the agency determines that review is 
desirable, reduction of interlocutory appeals, and use of employee 
review boards to relieve agency heads of routine cases, have expedited 
the decisional process, enhanced the status of hearing examiners, pre- 
vented repetitious consideration of routine matters, and allowed agency 
heads to concentrate on important questions of policy. The often im- 
perative need to improve agency functioning calls for sustained efforts 
to encourage procedural advances like those suggested above. (See 
Administrative Conference Recommendation No. 6 — Delegation of 
final decisional authority subject to discretionary review by the 

C. Judicial Review 

The Ash Council recommends the creation of a specialized, non- 
Article III appellate court to hear appeals from the restructured trans- 
portation, power, and securities agencies. The new tribunal presumably 
would perform the same function that is now performed by the various 
United States Courts of Appeals (and by special three- judge district 
courts in the case of orders of the Interstate Commerce Commission). 

The Conference does not favor the substitution of this new appellate 
tribunal for the regular courts at this time. 

1. The proposed new tribunal would not relieve the regular courts of 
a substantial burden : less than three percent of the cases making up 
the current workload of the present reviewing courts would be affected. 
It is highly doubtful whether such a small caseload justifies the crea- 
tion of a new tribunal. Moreover, if the courts of appeals must be 
relieved of some of their present workload, it would be a questionable 
choice of priorities to relieve them of regulatory cases rather than of 
other categories of cases, such as diversity litigation, which do not 
involve significant questions of federal law. Finally, a new tribunal 
with review authority over the decisions of only a small minority of 
agencies cannot be expected to make the contributions to uniformity in 
administrative law which the Ash Council sees as one of the advantages 
of its establishment. 


2. A traditional justification of limited judicial review of regulatory 
decisions suggests the appropriateness of a non-specialized court of 
general jurisdiction. Regulatory agencies have a tendency to become 
preoccupied narrowly with a limited set of policies and concerns; 
review of the legality of their actions in the light of the broader per- 
spective of the norms and values of the total legal system may out- 
weigh any benefits from specialization. The function of judicial review, 
in this view, is not to provide a better expert, but to subject the agency's 
action to independent scrutiny as to its fairness and consistency with 
statutory and constitutional norms. The contrary position emphasizes 
the necessity for expert knowledge and specialized judgment in order 
to perform a meaningful review function in highly complex regulatory 
cases. If a specialized reviewing court is desired, a number of other 
methods of organizing and staffing such a court may be preferable and 
should be considered. The court, however, should be a constitutional 
(Article III) court and should have a jurisdiction broader than only a 
few industries. 

3. There is a danger that a narrowly specialized reviewing court, 
concerned with the actions of only a few agencies and the problems of 
only a few industries, might become or give the appearance of becom- 
ing identified with the agency or industry point of view. Appointments 
to such a court could pose a special problem, because, while of vital 
importance to the regulated industry, they would be less subject to 
broad professional and public scrutiny than appointments to the courts 
of appeals. 

4. The Ash Council proposal for a specialized reviewing court bears 
no resemblance to earlier proposals for an administrative trial court to 
absorb the adjudicatoiy functions performed by some agencies, par- 
ticularly in the tax, labor and unfair trade fields. Evaluation of such 
proposals involves very different considerations from those discussed 
here, and we express no opinion with respect to such proposals at this 

5. It is impossible to foresee what effects adoption of the other Ash 
Council recommendations would have on judicial review, although it 
seems likely that they would be in the direction of enlarging the num- 
ber of cases in which review was sought. Establishment of a specialized 
reviewing court is separable from the other Ash Council proposals and, 
if the latter were to be adopted, it could then be considered on the basis 
of experience under the new system. 




(Adopted Dec. 6, 1971) 

Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 
(1970), provides that an alien who meets all requirements for admis- 
sion as an immigrant may have his status adjusted "by the Attorney 
General, in his discretion and under such regulations as he may pre- 
scribe, to that of an alien lawfully admitted for permanent residence." 

The Immigration and Naturalization Service last year passed upon 
about 45,000 requests for such change-of-status. An extensive study of 
change-of -status actions, conducted with the cooperation of the Serv- 
ice, has produced a number of suggestions for the improvement of this 
process. Some of them have already been implemented by the Service.^ 
Other suggestions in the consultant's report that underlies this recom- 
mendation merit consideration by the Service,^ but are not recom- 
mended for Conference action. 

The recommendation which follows should be adopted by the Im- 
migration and Naturalization Service in carrying out its functions 

1 The principal suggestions In the report of the consultant which have In substantial 
part been implemented by the Immigration and Naturalization Service are : (a) Clarify to 
examiners that an application which cannot be granted because of visa unavailability 
should be rejected rather than denied, (b) Impress upon interviewing examiners the need 
to (1) assist the alien by pointing out to him any ground for relief which he may have 
overlooljed, and (ii) attach no prejudice to the alien's appearance at the interview with 
counsel, (c) The form advising of adverse action by the examiner should point out the 
avenues of available relief rather than stating "There is no appeal from this order." 
(d) When sec. 245 applications are initially filed with the special Inquiry oflScer conduct- 
ing a deportation proceeding they should be referred to an examiner for adjudication. 

2 The principal suggestions in the consultant's report which merit consideration by the 
Service although not incorporated in the Conference recommendation are : (a) The applica- 
tion form for an extension of stay should (i) warn that a false statement may be grounds 
for a sec. 245 denial, and (ii) inquire as to membership only in proscribed organizations and 
not as to "all" organizations or groups of which the alien has at any time been a member, 
(b) Experience indicates that the routine inquiries to the CIA, numbering over 45,000 a year, 
do not warrant the cost and possible delay which they entail, (c) The cumulative oral oath 
at the interview should be eliminated, (d) An interview or interrogation which may lead to a 
criminal prosecution should be conducted only after arrangements for the presence of counsel 
have been made for any alien who requests counsel, (e) The applicant should be advised when 
he invokes the privilege of silence that this may lead to the denial of his application, and 
the reason for such a denial should be explained in the decision. (/) There should be written 
standards as to the availability of temporary departure during the pendency of a sec. 245 
application, (g) Enforcement should be tightened and expedited by serving a deportation 
order to show cause with the adverse examiner's decision, (h) The special inquiry officers 
conducting deportation hearings should complete the docket forms more carefully, especially 
in respect to whether a renewed sec. 245 application has been filed, (i) Nonimmigrant status 
should not be revoked, and "voluntary departure" extended, as a routine step In waiver and 
private bill cases. 


under section 245. The Service should, moreover, consider the appli- 
cability of the recommendation and of the additional suggestions in the 
consultant's report to functions other than those under section 245. 


A. Rules and Standards of Decision 

Examiners who decide cases under section 245 usually obtain little 
guidance from the statute, rules, standards, or precedents. The lack 
or inadequacy of such guidance often results in unequal justice and 
invites pressures upon Members of Congress to intervene in individual 
cases. A large proportion of the decisions under section 245 can and 
should be controlled by regulations which establish the rules and 
standards for decision. These regulations should crystallize the exist- 
ing body of precedents, staff instructions and established traditions of 
decision into a form which should in the ordinary case both control 
discretion and provide a publicly available body of the governing 
law. In drafting these regulations, the Service should seek to restrict 
unnecessary or unwarranted discretion in reaching individual deci- 
sions and should also seek to ensure that decisions are reached on 
grounds that have a direct relationship to the purposes of section 245. 

B. Reasoned Decisions and Precedents 

When neither rules nor standards provide effective guidance for the 
exercise of discretion, reasoned decisions and precedents may do so. 
The Service has made some effort to ensure that the reasons for its 
actions under section 245 be formulated and be publicly available, but 
more needs to be done in the following respects : 

1. Examiner decisions. — Examiner opinions which deny relief are 
now written and made publicly available. Opinions granting relief 
should also be written and made publicly available when they {a) 
involve difficult or novel questions, (5) represent a favorable exercise 
of discretion despite the presence of a permissible ground for denying 
relief, or (c) involve an inquiry or request initiated by a Member of 
Congress or other official of the Federal Government. 

2. Decisions of Special Inquiry Officers. — The Service is in the 
course of requiring that all opinions of special inquiry officers which 
reverse the decision of an examiner be transcribed and made publicly 
available, instead of being held in the taped record of the deportation 
proceeding. The same should be done for other opinions of special in- 
quiry officers which in the judgment of the officer have precedential 


value. When there is a transcribed opinion relating to a case in which 
there was an examiner's opinion, the Service slijould make that fact 
apparent to a reader in order to prevent his inadvertent reliance upon 
a reversed decision; for example, the two related opinions could be 
filed next to each other in the public reading room files. 

3. Decisions relating to deferred enforcements. — Service decisions 
which defer convening a deportation hearing or enforcing a deporta- 
tion order should similarly be written and made publicly available 
when they {a) involve difficult or novel questions, {h) represent a 
favorable exercise of discretion despite the presence of a permissible 
ground for denying relief, or (<?) involve an inquiry or request ini- 
tiated by a Member of Congress or other official of the Federal 

4. Decisions as precedents. — The examiners and special inquiry offi- 
cers in decisions under section 245 ordinarily give significant preceden- 
tial value only to the decisions of the Board of Immigration Appeals. 
Section 245 decisions should be reached upon the basis also of prece- 
dents established by the examiners and the special inquiry officers 


1. Manuals and instructions. — The Service, which has indicated its 
intent to make its Operations Instructions publicly available, should 
also make its handbooks and administrative manuals publicly avail- 
able, except as portions may be exempt under the Freedom of Infor- 
mation Act. 

2. Reports of decisions. — The printed reports of the Service should 
include all decisions of examiners and special inquiry officers which in 
the judgment of the Service have sufficient precedential value to war- 
rant nationwide circulation. 

3. Periodic revision. — The Service should periodically review and 
update its published regulations, decisional precedents and such of its 
information booklets and leaflets as identify the grounds for exercising 
discretion. The revised regulations should define to the extent prac- 
ticable the contemporary rules, standards and policies that the Service 
considers proper and upon which it instructs adjudicators to rely. 

4. Notice of opportunities for administrative reviev\ — The Service, 
which no longer advises that there is "no appeal" from an adverse 
examiner's decision, should publish a simply worded pamphlet de- 
scribing, with relevant citations to statutory provisions and regula- 
tions, the available opportunities for administrative review of an 
adverse examiner's decision under section 245 and the ways by which 
enforcement of an order of deportation may be deferred. 


D. Deferred Enforcement 

1. Administrative procedures. — The statutory provision for suspen- 
sion of deportation has been supplemented by several administrative 
procedures which defer enforcement. If the Service finds it feasible, 
these administrative procedures for deferring enforcement stwuld be 
united, under a single descriptive category such as "deferred enforce- 
ment." In any case the rules, standards and precedents which govern 
or guide decision to defer deportation should be published in regula- 
tions ; and authority to defer enforcement should be delegated to the 
district directors. 

2. Private hills. — The Service now defers enforcement when a pri- 
vate bill is introduced for the relief of an alien and a committee of 
the Congress asks for a status report. The deferral continues so long 
as the bill (or successor bills introduced in subsequent Congresses) has 
not been disposed of. The Administrative Conference and the Service 
should discuss with the appropriate committees of the Congress 
whether, as seems plainly desirable, deportation should be deferred 
only until the expiration of the Congress succeeding the Congress in 
which the bill was introduced. 



(Adopted Dec. 7, 1971) 

Individuals and citizen organizations, often representing those with- 
out a direct economic or personal stake in the outcome, are increasingly 
seeking to participate in administrative hearings. Their concern is to 
protect interests and present views not otherwise adequately repre- 
sented in the proceedings. Agencies are exposed to the views of their 
staffs, whose positions necessarily blend a number of interests, and 
to the views of those whose immediate stake is so great that they are 
willing to undertake the cost of vigorous presentation of their private 
interests. Tlie opportunity of citizen groups to intervene as parties in 
trial-type proceedings where their views are unrepresented, formerly 
challenged on doctrinal grounds that they lacked a sufficient interest 
to have "standing," has been greatly broadened by statutes, administra- 
tive actions, and judicial decisions. Agency decisionmaking benefits 
from the additional perspectiA^es provided by informed public par- 


ticipation. However, the scope and manner of public participation 
desirable in agency hearings has not been delineated. In order that 
agencies may effectively exercise their powers and duties in the public 
interest, public participation in agency proceedings should neither 
frustrate an agency's control of the allocation of its resources nor un- 
duly complicate and delay its proceedings. Consequently, each agency 
has a prime responsibility to reexamine its rules and practices to make 
public participation meaningful and effective without impairing the 
agency's performance of its statutory obligations. 


In connection with agency proceedings where the agency's decision 
is preceded by notice and an opportunity to be heard or otherwise to 
participate — namely, notice-and-comment rulemaking, on-the-record 
rulemaking and adjudication — each agency should, to the fullest ex- 
tent appropriate in the light of its capabilities and responsibilities, 
apply the following criteria in determining the scope of public par- 
ticipation and adopt the following methods for facilitating that 
participation : 

A. Intervention or Other Participation 

Agency rules should clearly indicate that persons whose interests 
or views are relevant and are not otherwise represented should be 
allowed to participate in agency proceedings whether or not they have 
a direct economic or personal interest. Whatever the form of the pro- 
ceeding, reasonable limits should be imposed on who may participate 
in order (a) to limit the presentation of redundant evidence, (h) to 
impose reasonable restrictions on interrogation and argument, and 
(c) to prevent avoidable delay. In every determination of whether 
participation is appropriate, the agency should also determine whether 
the prospective participant's interests and views are otherwise repre- 
sented and the effect of participation on the interests of existing 

1. N otice-and-com/ment rulemaJcing proceedings. — Agencies en- 
gaging in notice-and-comment rulemaking should, to the extent feasi- 
ble: {a) make available documents, materials and public submissions 
upon which the proposed rule is based; (&) invite the presentation 
of all views so that the agency may be apprised of any relevant con- 
sideration before formulating policy; (r) develop effective means of 
providing notice to the affected public and to groups likely to possess 


useful information; and (d) if there is a hearing, allocate time fairly 
among all participants. 

2. On-the-record rulemaking and adjudicative hearings. — Public 
participation should be freely allowed in trial-type proceedings where 
the agency action is likely to affect the interests asserted by the par- 
ticipants. Intervention or other participation in enforcement or li- 
cense revocation proceedings should be permitted when a significant 
objective of the adjudication is to develop and test a new policy or 
remedy in a precise factual setting or when the prospective intervener 
is the de facto charging party. Public participation in enforcement 
proceedings, license revocations or other adjudications where the 
issue is whether the charged respondent has violated a settled law or 
policy should be permitted only after close scrutiny of the effect of 
intervention or other participation on existing parties. 

B. Selection of Interveners 

Intervention by a particular group or person as a party in a trial- 
type proceeding should depend upon a balancing of several factors, 
including : 

(a) The nature of the contested issues ; 

(h) The prospective intervener's precise interest in the subject 
matter or possible outcome of the proceeding ; 

(c) The adequacy of representation provided by the existing parties 
to the proceeding, including whether these other parties will represent 
the prospective intervener's interest and present its views, and the 
availability of other means (e.g., presentation of views or argument 
as an amicus curiae) to protect its interest ; 

(d) The ability of the prospective intervener to present relevant 
evidence and argument ; and 

(e) The effect of intervention on the agency's implementation of its 
statutory mandate. 

C. Scope OF Participation 

The scope of an intervener's participation in a trial-type proceed- 
ing must assure it a fair opportunity to present pertinent information 
and to provide the agency a sound basis for decision, w^ithout render- 
ing the hearing unmanageable. The nature of the issues, the inter- 
vener's interests, its ability to present relevant evidence and argu- 
ment, and the number, interests and capacities of the other parties 
should determine the dimensions of that participation. In general, a 
public intervener should not be allowed to determine the broad outline 


of the proceeding, such as the scope or compass of the issues. A public 
intervener generally should be allowed all the rights of any other party 
including the right to be represented by counsel, participate in pre- 
hearing conferences, obtain discovery, stipulate facts, present and 
cross-examine witnesses, make oral and written argument, and par- 
ticipate in settlement negotiations. Where the intervenor focuses 
on only one aspect of the proceeding or does not seek to controvert 
adjudicative facts, consideration should be given to limiting its par- 
ticipation to particular issues, written evidence, argument or the like. 
Agencies should be cautious in advance of actual experience in antici- 
pating that intervention will cause undue delays. 

D. Cost of Participatiox 

The cost of participation in trial-type proceedings can render the 
opportunity to participate meaningless. Agencies have an obligation 
to minimize transcript charges, to avoid unnecessary filing require- 
ments; and to provide assistance in making information available; 
and they should experiment with allowing access to their staff experts 
as advisers and witnesses in appropriate cases. 

1. Filing and distrihution requirements.— F'\\\ng and distribution 
requirements {e.g... multiple copy rules) should be avoided except as 
necessary and provision should be made for a waiver where the re- 
quirement is burdensome. Existing filing and distribution requirements 
should be re-examined. Agencies should make every effort to provide 
duplication facilities at a minimum cost. 

2. Transcripts. The cost of recording formal proceedings should 
be borne by the agencies, not by the parties or other participants to 
the proceeding (except to the extent that a person requests expedited 
delivery). Existing contracts and arrangements should be revised to 
provide for the availability, either through a reporting service or 
the agency itself, of transcripts at a minimum charge reflecting only 
the cost of reproducing copies of the agency's transcript. Transcripts 
should be available without charge to indigent participants to the 
extent necessary for the effective representation of their interests. 
"\^Tiere the aggregate of these transcript costs imposes a significant 
financial burden on the agency, the agency should seek and Congress 
should provide the necessary additional appropriation. 

3. AvailahiJity of inforination and experts. — An agency should 
provide assistance to participants in proceedings before it or another 
agency, provided that the agency's resources will not be seriously 
burdened or its operations impaired. Assistance should include advice 
and help in obtaining information from the agency's files. Each agency 


should experiment with allowing access to agency experts and making 
available experts whose testimony w^ould be helpful in another 
agency's proceeding. 

E. Notice 

Each agency should utilize such methods as may be feasible, in addi- 
tion to the Federal Register's official public notice, to inform the 
public and citizen groups about proceedings (including significant 
applications and petitions) where their participation is appropriate; 
Among the techniques which should be considered are factual press 
releases written in lay language, public service announcements on radio 
and television, direct mailings and advertisements where the affected 
public is located, and express invitations to groups which are likely 
to be interested in and able to represent otherwise unrepresented in- 
terests and views. The initial notice should be as far in advance of hear- 
ing as possible in order to allow affected groups an opportunity to 
prepai-e. Each agency should consider publication of a monthly 
bulletin,^ listing : 

(a) The name and docket number or other identification of any 
scheduled proceeding in which public intervention may be appropriate ; 

(b) A brief summary of the purpose of the proceeding ; 

(c) The date, time and place of the hearing ; and 

(d) The name of the agency, and the name and address of the 
person to contact if participation or further information is sought. 

Statement of Max D. Paglin, Chairman of the Committee on Agency 
Organization and Procedure ; joined hy Arthur B. Focke, George 
A. Graham^ and Henr-y N. Williams^ Committee Members^ and by 
John A. Buggs, Arthur E. Hess, and David F. Sive 

The Conference has taken constructive action to assist agencies in 
the enhancement of their decisionmaking process through this Rec- 
ommendation, which is designed to assure meaningful and effective 
participation in such process by citizens and public intervener groups. 

Tlie one area of the recommendation, as put before the Conference 
by the Committee on Agency Organization and Procedure, which 
was not adopted w^as the subsection dealing with litigation expenses 
in section D entitled "Cost of Participation". It was the Committee's 
view, and still is our view that, unless aided by other resources, the 
costs of meeting necessary legal expenses in trial-type proceedings 

* This recommendation does not supersede Recommendation 4, Consumer Bulletin. 


could constitute insuperable barriers to effective participation by 
citizens and public intervener groups. The committee recommenda- 
tions was framed in terms of encouraging agencies to experiment, in 
apropriate cases and when authorized by law, in the use of various 
suggested alternative techniques (recognized in other administrative 
and judicial proceedings, a? well as in pending consumer legislation) . 
At the same time, the recommendation's language recognized the need 
for, and urged the agencies to seek, necessary legislation and/or 
additional appropriations where required to accomplish the objec- 
tives set forth in the recommendation. 

This is a critical problem which will have to be resolved if public 
participation is to be an aid and not a hinderance to agency perform- 
ance, and if, in the words of the then Circuit Judge Warran Burger 
in the second United Church of Christ case, 425 F. 2d 543, 548-549 
(D.C. Cir., 1969), the selected "Public Intervenors who were per- 
forming a public service" are to be accorded the status of "an ally" 
and not "an opponent" by the agencies. As experience is gained in the 
future in the area of broadened public participation, we urge that 
further attention be given by the Conference, the agencies and the 
Congress to implementing such assistance by appropriate means and 

Statement of John A. Buggs 

I deeply regret that subsection 4 of part D of the recommendation 
concerning public participation in administrative hearings was re- 
jected by the Administrative Conference. It is unfortunate that the 
Conference did not recognize that this section was the most mean- 
ingful part of Recommendation 28. Agency proceedings are often pro- 
tracted and expensive for participants. Private interests, such as 
businesses, are able to afford costs of participation far better than 
consumers or other public interest groups, which cannot pass on the 
costs of participation. Having recognized the right of these groups to 
take part in administrative proceedings, it is unfair to place a means 
test upon their effective participation. It is unrealistic to believe that 
public interest groups can regularly participate in administrative pro- 
ceedings without financial assistance. Subsection 4 suggested reason- 
able ways for agencies to provide, on an experimental basis, such 
assistance. The Conference should have accepted the fact that changes 
in governmental practice to increase fairness may require expendi- 
ture of public funds. 


Statement of Kenneth CulpDcuvis 

Recommendation 28, by its terms, is limited at many points to 
adjudication and rulemaking, and it is for the most part further lim- 
ited to on-the-record hearing and notice-and-comment rulemaking. 
My opinion is that the agencies in implementing Recommendation 28 
should often go beyond these limitations in allowing citizen groups 
to exert their influence on administrative action (or inaction). 

For instance, intervention by citizen groups probably should often be 
permitted in investigatory hearings, such as those of the Civil Rights 
Commission considered in Hannah v. Larche, 363 U.S. 420 (1960). 
And such groups should often be allowed to intervene in abridged 
adjudicative hearings that are not deemed "on-the-record," as well 
as in conference-type and speech-making hearings, whether or not 

I think the role of citizen groups should neither be confined to 
adjudication and rulemaking nor be confined to "hearings" and "pro- 
ceedings." The vital interests of such groups extend to all kinds of 
administrative action (or inaction), including determinations of 
whether or not to investigate, to initiate, to prosecute, to contract, to 
advise, to threaten, to conceal, to publicize, and to supervise. Such 
provisions of Recommendation 23 as those about notice, availability 
of information, and access to agency experts may be especially im- 
portant for informal action (or inaction) involving neither adjudica- 
tion nor rulemaking. 

Statement of Malcolm S. Mason 

The Conference has adopted a modest and conservative recommenda- 
tion encouraging intervention and other forms of participation by 
citizen groups in administrative proceedings with a due balancing of 
factors of convenience. One of these balancing factors stressed by the 
recommendation is whether prior parties provide adequate representa- 
tion of the prospective intervener's interests and views. This will 
push in the direction of limiting intervention to a single representative 
of a particular interest, and thus will appear to give credentials to 
that group as "the" representative of the poor or the consumer or 
the public or other citizen interest however characterized. This danger 
was pointed out on the floor of the Conference by Professor Auerbach. 
It was part of my objection to the concept of "a" people's counsel for 
the poor, because the poor are many and different and must be able 
to speak with many voice?, as I noted in my separate statement with 
respect to Recommendation No. 5 on representation of the poor (1968) . 

493-361 O - 73 - 4 


I believe that the recommendation should have explicitly taken ac- 
count of this danger. 

Apart from this, I think it unfortunate that the Conference has 
failed to urge active exploration and experiment with available meth- 
ods for assisting groups in meeting the necessary expenses of citizen 
participation in trial type proceedings. These methods need not be 
costly. Until we have experimented with them we will not know what 
the costs are and will not be able to balance rationally costs against 
benefits. In some instances it will prove more costly not to assist such 
groups than to assist them, for the presence of representative groups 
may save the agency from serious substantive error and from serious 
delay. No agency, however conscientious, has a monopoly of wisdom. 
The wisest agencies are those that encourage others to inform them 
and do not pretend to speak for the public interest with the only 
qualified voice. 

Statement of Harold L. Russell joined hy Walter Gelhorn 

Paragraph D-3 of Recommendation 28 was adopted by a 27-24 
vote of the members of the Conference, Being one of the 24, 1 wish the 
record to reflect my views. The basic purpose of Recommendation 28 
is to encourage greater participation in agency proceedings by inter- 
veners. Paragraph D-3 would subvert that purpose. Instead of en- 
couraging the development of evidence which the intervener may be 
uniquely able to develop, it would turn the intervener to the agency's 
files and experts and to experts in other agencies for the development 
of evidence already available to the agency. Moreover, it is not believed 
that agencies are staffed, or should be staffed, to undertake such work 
for interveners. 



(Adopted Dec. 7, 1971) 

The Federal Food, Drug and Cosmetic Act requires the Food and 
Drug Administration (FDA) to hold a formal evidentiary hearing in 
connection with promulgation of certain types of rules of general 
applicability. Detailed findings of fact based solely on the record must 
accompany the regulations, and such findings are subject to judicial 


review on a substantial evidence test. The general consensus of ob- 
servers of the FDA is that in the past this procedure, often decsribed as 
"rulemaking on a record," has worked poorly. The basic problem is 
that the statutory provisions require procedures which are ill-adapted 
to the promulgation of general rules of broad applicability. An ex- 
tensive study of the desirability of "rulemaking on a record" proce- 
dures in FDA and elsewhere is underway ; the recommendations con- 
tained in the present report, however, are directed toward improving 
the performance of FDA, given the present, and probably unwise, 
statutory mandate to that agency. 

The FDA, in its conduct of "rulemaking on a record" proceedings, 
has not adopted procedures followed by many other agencies to facili- 
tate large multiparty proceedings. As a consequence, these proceedings 
have been unnecessarily lengthy and burdensome to all parties. The 
following recommendation is directed toward (1) encouraging the 
increased use of written testimony, (2) seeking to improve the de- 
lineation of factual areas of controversy in advance of the hearing, 
(3) providing for greater access to information about the agency's 
case in advance of the hearing, and "(4) altering the agency's approach 
toward ex parte contacts and separation of functions. 


In conducting rulemaking proceedings pursuant to section 701(e) 
of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 371 (1970), 
the Food and Drug Administration of the Department of Health, 
Education, and Welfare should adopt the following procedures : 

A. Informal Opinions 

During the pendency of a section 701(e) proceeding, the FDA 
should encourage requests addressed to it for informal written opin- 
ions as to the applicability of the proposed regulations to specific 
situations so that potential participants can determine whether it is 
necessary for them to participate further in the proceeding. The 
agency should I'espond to such requests to the extent it has views on 
the subject. Informal opinions issued pursuant to this recommenda- 
tion should be made publicly available as required by the Freedom of 
Information Act, and the agency should consider publishing the most 
important such opinions in the Federal Register. 


B. Delineation of Issues in the Notice of Hearing 

The FDA should consider that "statement of issues'* in the Notice 
of Hearing as the first step in isolating the questions to be considered 
at the formal hearing. To this end, it should — 

(a) Amend its regulations to state that the "statement of issues" is 
not jurisdictional, but may be augmented or revised at the prehearing 
conference or hearing by order of the hearing examiner. 

(b) State explicitly in the notice that while the agency is required 
by statute to support every aspect of the stayed regulations by sub- 
santial e\adence, the issues to be considered at the formal hearing will 
generally be limited to the issues as augmented or revised. 

(c) Formulate the "statement of issues" to the extent practicable 
in terms of areas of disagreement rather than in the ultimate language 
of the statute itself. 

C. The Prehearing Conference 

1. The FDA should make more effective use of the prehearing con- 
ference to isolate the areas of disagreement and narrow the scope of 
the hearing. To this end — 

(a) The hearing examiner should normally require such par- 
ticipant (including the agency) , at an early age of the prehearing 
conference, to distribute to the other participants a written state- 
ment summarizing the testimony and proof to be adduced by 
witnesses called by the participant. The statement should include 
the names of prospective witnesses, the nature of the testimony 
of each witness, and a list of documentary evidence to be intro- 
duced. Documentary evidence referred to in written statements 
should be made available by each participant for inspection and 
copying by any other participant. After the distribution of writ- 
ten statements, the prehearing conference should seek to establish 
the precise areas of disagreement. The liearing examiner may 
direct that discussion of issues be conducted off-the-record, but 
all statements as to areas of disagreement should be reduced to 
writing or be subject of a verbatim transcript approved by the 

(h) The hearing examiner may require written objections by 
participants to the areas of disagreement as stated by the Govern- 
ment in the notice of hearing, and may receive oral or written 
argument in connection with sucli objections. 

(c) The hearing examiner should describe in writing the areas 
of disagreement, and in the absence of surprise, cross-examination 


at the hearing should be limited to the areas of disagreement, as 
defined at the prehearing conference. 

2. The prehearing conference should (i) identify the witnesses to be 
cross-examined, (ii) determine whether the examination is to extend 
beyond the witnesses' direct testimony, and if so, define the scope of 
the examination, (iii) determine whether restrictions should be im- 
posed on cross-examination, (iv) identify documents for admission 
into evidence, (v) establish hearing dates, deadlines for distributing 
written direct testimony, and the sequence in which witnesses will be 
produced for cross-examination, (vi) establish the routine use of 
standard scientific treatises and ( vii) establish the manner in which the 
qualifications of expert witnesses are determined. In the absence of 
surprise or unexpected developments, procedures and time periods 
established at the prehearing conference should be adhered to at the 

3. If the proceeding is a complex one and the hearing is to be held 
in stages, the foregoing procedures should be applicable only to the 
first stage, and should be repeated for subsequent stages. Discretion 
as to the scheduling of such further stages should be vested in the 
hearing examiner. 

D. The Conduct of the Hearing 

1. The hearing should be conducted so as to encourage submissions 
of evidence in written form and discourage excessive oral examina- 
tion or cross-examination. To this end the FDA should adopt regula- 
tions specifying that direct testimony should normally be submitted in 
written form, thougli where appropriate, the witness may be permitted 
by the hearing examiner to supplement his written direct by a short 
oral direct presentation. Generally, all participants should be required 
to distribute their written direct testimony before any witness is 
produced for cross-examination, and the distribution of the written 
direct testimony by the proponent of the proposed regulation should 
precede the distribution of written direct testimony by other 

2. The hearing examiner should exercise substantial authority over 
cross-examination in order to eliminate irrelevant or cumulative testi- 
mony and to expedite the hearing. Cross-examination which does not 
relate to the areas of disagreement as defined in the prehearing con- 
ference should be excluded as irrelevant, though the hearing examiner 
should have authority to modify the description of the areas of dis- 
agreement at the hearing where appropriate to prevent prejudice to 
any participant. Examination relevant to any matter at issue should 


be permitted even though not raised by the witness' direct testimony 
if (i) within the knowledge, competence or expertise of the witness, 
and (ii) at the prehearing conference the participant desiring to 
cross-examine the witness specifies the areas to be covered by the cross- 
examination and shows that the proposed examination will produce 
testimony which cannot conveniently be introduced by direct testi- 
mony. The participant producing such witness may be permitted to 
cross-examine the witness as to testimony beyond the scope of his 
direct testimony. 

3. If several participants with common interests desire to cross- 
examine a witness, the hearing examiner should encourage the par- 
ticipants to select a lead attorney or attorneys to conduct the cross- 
examination. In the absence of a showing of prejudice, participants 
with common interests should be grouped by the hearing examiner, 
and participants in a group should not be permitted to cross-examine 
witnesses called by other members of the group. 

E. Obtaining Information and DociriiENTs From FDA 

1. The FDA should routinely make available to any participant 
prior statements of a witness produced by the agency which are in its 
files and which relate to the subject matter of the expected testimony 
if (i) the statement was made before the person agreed to become a 
witness for the agency, or (ii) the statement was published by the 
witness. "Statements" should include written statements signed or 
adopted by a witness or a recording or transcription of an oral state- 
ment made by the witness but should not include investigative reports, 
internal agency memoranda or the like which the agency would not 
be required to produce under the following paragraph. 

2. The FDA should routinely make available upon request all un- 
privileged factual information in its files which relates to the subject 
matter of the hearing. Documents which contain such information 
should usually be made available upon request. Avhether or not the 
production of sucli documents may be required under the Freedom 
of Information Act. In considering such requests the agency should 
proceed on the assumption that disclosure is presumptively required 
in every case. Refusal to disclose should be based only on strong rea- 
sons, for example that the information represents trade secrets, or 
possible violations of the Act by non-participants, or internal memo- 
randa the disclosure of which would seriously hinder the effective 
operation of the agency. The exceptions referred to in the preceding 
sentence should be construed more narrowly than the similar language 
in the Freedom of Information Act has been construed by the agency 


in the past. If the agency refuses to provide requested information or 
documents, it should to the maximum extent feasible provide sum- 
maries or descriptions or excerpts of information appearing in such 

3. Requests for information from FDA files for purposes of the 
hearing should be accepted after the notice of hearing is issued and 
generally should cease when the hearing begins. The hearing examiner 
should be vested with authority, subject to interlocutory review by 
the agency to the extent permitted by its rules, to rule on questions 
relating to production of information, documents and prior statements 
of witnesses, and to issue appropriate orders to protect the interest 
of any participant or other person. 

F. Ex Parte Communications 

1. The FDA should amend section 2.104 of its regulations, 21 CFE 
§ 2.104, to clarify that disclosure of ex parte communications under 
that section is required if — 

(a) The communication is with or to the Commissioner, Deputy 
Commissioner or presiding hearing examiner; 

(6) The communication occurs after the publication of the notice 
of hearing; 

(c) The communication is (i) from a non-agency participant, the 
attorney appearing on behalf of the agency at the hearing, or a mem- 
ber of the FDA staff assisting such attorney at the hearing, and is not 
served on or communicated to all participants, or (ii) is from a person 
not a participant and not an agency employee ; and 

(d) The communication relates to the substantive issues involved 
in the proceeding as described in the notice of hearing or to the desir- 
ability of adopting regulations which have been stayed and are the 
subject of the hearing. 

2. Section 2.104 should be further amended to require that dis- 
closure of an ex parte communication should include a statement or 
summary of the information imparted or contentions advanced in the 

3. The agency should also amend its regulations to give an oppor- 
tunity to participants to introduce evidence or argument to rebut 
facts or contentions made in any ex parte comnninications, disclosure 
of which is required by section 2.104. 

4. The Commissioner, Deputy Commissioner and presiding hearing 
examiner should refrain from soliciting ex parte communications after 
the notice of hearing; is issued. 


G. Separation of Functions 

1. The Department of Health, Education, and Welfare should adopt 
organizational changes within the office of General Counsel so that 
the attorneys who prepare and conduct a section 701(e) hearing do 
not participate in the preparation of the tentative or final order. 
Legal assistance to the Commissioner of the FDA and the Secretary 
of HEW on such matters should continue to be provided by the Office 
of the General Counsel even though hearing attorneys are subject 
to oversight and control by the General Counsel and his subordinates. 

2. Members of the staff of the agency who assist the agency attorney 
at the hearing should not participate in the preparation of the tenta- 
tive or final order. 

H. Participation by Citizen Groups 

The FDA should urge lay participants not represented by counsel 
to file statements or participate in the proposal stage of the proceeding 
rather than to act as a formal participant in the hearing. Such persons 
who desire to have their views made part of the formal record should 
be permitted to testify orally and in narrative fashion on the record 
at the formal hearing without being "called" by one or more of the 
participants. This recommendation is not applicable to persons, groups 
or agencies who are represented by counsel. 

I. Denial of Hearings by FDA 

No purpose is served in holding evidentiary hearings when the only 
issues in dispute involve purely legal disputes or will not affect the 
ultimate outcome of the proceeding. However, the agency should grant 
public hearings where the objections set forth in the request for hear- 
ing, if true, would invalidate the proposed regulation. Hearings 
should be granted when a prima facie showing has been made that an 
objection which meets this standard does exist. If the issues involved 
in such hearings are not those which are suitable for development at 
a formal trial-type of hearing, the agency should employ procedural 
devices to limit the scope of the hearing, produce most evidence and 
testimony in written form, and expeditiously create a formal record 
on which the correctness of the agency's factual conclusions may be 




(Adopted Dec. 7, 1971) 

Cease and desist orders issued by administrative agencies and in- 
junctions obtained by administrative agencies from the federal courts 
in the enforcement of regulatory statutes have generally been perma- 
nent in duration. As a result of this practice, many orders and in- 
junctions now outstanding are decades old. Such outstanding orders 
and injunctions may serve no useful purpose and often cause incon- 
venience and hardship to the respondents. A number of agencies have 
experimented successfully with techniques for limiting the duration 
of certain types of ^orders and injunctions to a set period of time, but 
this approach is not appropriate in many circumstances. To deal with 
this situation agencies should therefore have available procedures 
whereby respondents may seek modification or dissolution of out- 
standing orders and injunctions. 


A. Agency Cease-and-Desist Orders 

Each Federal agency that issues a significant number of cease-and- 
desist orders over which it retains jurisdiction should have a precedure 
available wliereby a respondent may request the agency to modify or 
vacate a cease-and-desist order that has become final. The factors con- 
sidered by the agency in ruling upon such a request should include: 
the period of time the order has been in effect; changed conditions of 
fact or law during that period ; the respondent's compliance with the 
order; the likelihood of further violations of the order; the hardship 
which the order imposes on the respondent ; the extent jof the respond- 
ent's compliance with requirements of law that are related to those 
covered by the order ; the interests of other persons or parties affected 
by the order ; the importance of the order to the agency's overall en- 
forcement program ; and the public interest in the enforcement of the 

B. Court-Enporced Orders 

Each Federal agency that obtains a significant number of injunc- 
tions in the Federal courts or issues a significant number of cease and 


desist orders which are enforced by Federal courts that retain by stat- 
ute exclusive jurisdiction over the orders should have a procedure 
available whereby a respondent may request the agency to join or 
concur with it in moving the court to modify or vacate such an in- 
junction or order or, in the case of an order issued by the agency, to 
remand the proceeding to the agency for that purpose. The factors 
considered by the agency in acting upon such a request should include 
those stated in paragraph A. 



(Adopted Dec. 7, 1971) 

Federal agencies annually disburse billions of dollars in grants- 
in-aid to State and local governments and to private entities to sub- 
sidize activities in such areas as welfare, housing, transportation, 
urban development and renewal, law enforcement, education, pollution 
control and health. While State and local governments and private or- 
ganizations are the direct recipients of the grants, the intended ulti- 
mate beneficiaries of the grant programs are private persons helped 
by the expanded level of support or services made possible by Federal 

In administering these grants both public and private grantees 
must observe the Federal grant standards established to assure the 
accomplishment of Federal purposes. Federal agencies have often en- 
countered difficulty in enforcing compliance by the grantees with the 
Federal standards. A factor contributing to this difficulty is that many 
Federal agencies do not have adequate procedures for resolving ques- 
tions of compliance and for handling complaints by private persons 
affected by a grant-in-aid program that the program does not comply 
with Federal standards. A further contributing factor is that the 
principal sanction presently available to Federal agencies for secur- 
ing compliance is to cut off the flow of Federal funds. This sanction 
raises a serious problem because, unless its threatened imposition 
prompts compliance, it stops worthwhile programs and adversely 
affects the interests of the innocent private persons whom the Con- 
gress intended to benefit through the program of Federal financial 


To aid in alleviating this situation the following recommendations 
are proposed with respect to each Federal program in aid of State, 
local or private activities through which support or services are pro- 
vided to individual beneficiaries or to the public generally. However, 
the recommendation does not apply to research, training, or demon- 
stration grants to government units or private organizations or in- 
dividuals, or to grants such as fellowship grants to individuals that 
primarily benefit the recipients of the grants. 


A. The Federal Administrative Complaint Procedure 

The Federal grantor agency should have an administrative pro- 
cedure for the receipt and impartial consideration of complaints by 
persons affected by the grant-in-aid program that a plan, project ap- 
plication or other data submitted by a grant applicant or grantee as a 
basis for Federal funding does not meet one or more Federal stand- 
ards. This procedure should afford the complainant an opportunity to 
submit to the grantor agency for its consideration data and argu- 
ment in support of the complaint, and should afford the grant appli- 
cant or grantee involved a fair opportunity to respond. If the agency 
determines that the complaint is apparently ill-founded or is insub- 
stantial, it should notify the complainant of its determination and 
should state in writing the reasons therefor. If the agency determines 
that the complaint appears to be substantial and supported by the in- 
formation at hand, it should so notify both the complainant and the 
grant applicant or grantee of its present determination in this respect 
and should state in writing the reasons therefor. If the agency exer- 
cises discretion not to make a determination on one or more issues 
raised by a complaint, it should so notify the complainant in writing. 
The agency should pass upon all complaints within a prescribed 
period of time. 

The complaint procedure administered by the Federal grantor 
agency should also provide for the receipt and impartial considera- 
tion of complaints that a grantee has in its administration of the 
funded program failed to comply with one or more Federal standards. 
It is anticipated that many grantor agencies will find it necessary to 
limit their consideration of such complaints to situations in which the 
complainant raises issues Avhich affect a substantial number of per- 
sons or which ai-e particularly important to the effectuation of Federal 
policy and will, therefore, dispose of most individual complaints con- 


cerning grantee administration by referring the complainant to such 
complaint procedures as are required to be established by the grantee. 
The grantor agency should seek by regulation to define the classes of 
cases that it will consider sufficiently substantial to warrant processing 
through the Federal complaint procedure and those classes of cases 
wherein complainants will be required to pursue a remedy through 
available complaint procedures administered by the grantee. 

B. The Grantee's Administratrt: Complaint Procedures 

The Federal grantor agency should require as a grant condition the 
establishment by the grantee of procedures to handle complaints con- 
cerning the grantee's operation of the federally assisted program. 
These procedures should afford any person affected by an action of the 
grantee in the operation of the program a fair opportunity to contest 
that action. The "fair opportunity" to contest will necessarily vary 
with the nature of the issues involved and the identity and interests of 
the complainant. In all cases, however, the complainant should have 
the right to submit to the grantee for its consideration data and argu- 
ment in support of the complainant's position. 

C. The Information System 

The Federal grantor agency should seek to assure that persons 
affected by a grant-in-aid program receive adequate information about 
the program in order that they may take advantage of the Federal 
and the grantee complaint procedures. The Federal grantor agency 
should require as a grant condition that all program materials (regu- 
lations, handbooks, manuals, etc.) governing the grantee's adminis- 
tration of a program supported in whole or in part by Federal grant- 
in-aid funds and all plans, applications and other documents required 
to be submitted to the Federal agency as a condition to the receipt of 
Federal funds should be readily accessible to persons affected or likely 
to be affected by the operation of the funded program. Plans, applica- 
tions and other documents that provide the basis for Federal funding 
should be made readily accessible to interested persons no later than 
the time of their submission to the grantor agency for approval and 
at an earlier time when required by law. 

The Federal grantor agency should seek to assure that the grantee's 
system for dissemination of program materials and grant submissions 
takes account of the nature, location and representation of affected 
persons. For example, as a part of a plan to make such materials readily 
accessible, program information might be deposited not only in the 


offices of the grantee but also in public and university libraries and in 
the offices of affected interest groups and their legal representatives. 
It might also be necessary to require the provision of descriptive sum- 
maries of technical rules or project applications or to require an oral 
explanation of program features, for example, the complaint proce- 
dures, which are critical to the protection of a beneficiary's interests. 
The Federal agency should make parallel efforts to disseminate mate- 
rials relating to its administration of the Federal grant program. 

D. Range of Sanctions 

The Federal grantor agency should seek to develop an adequate 
range of sanctions for insuring compliance with Federal standards by 
grantees that apply for or receive Federal financial assistance. The 
sanction of the total denial or cut-off of Federal funds should be 
retained and used where necessary to obtain compliance, but th,e 
agency should have available lesser sanctions that do not result in the 
prevention or discontinuance of beneficial programs and projects. This 
range of sanctions should include in appropriate cases : 

1. The public disclosure by the agency of a grantee's failure to com- 
ply with Federal standards and an indication of the steps believed 
by the agency now to be appropriate. 

2. An injunctive action brought by the agency or the Department 
of Justice in the Federal courts to require the grantee to fulfill any 
assurances of compliance with Federal standards made by the grantee 
or to enforce the Federal standards attached to the grant. 

3. The disallowance as a program or project cost of an expenditure 
by the grantee that does not conform with Federal standards, or other 
partial denial or cutoff of funds that affects only that portion of a 
program or project that is not in compliance with Federal standards. 

4. The imposition on a grantee who has not complied with Federal 
standards of additional administrative requirements specially designed 
to assure that the grantee brings its operations into compliance with 
Federal standards and redresses the effects of past noncompliance. 

5. The transfer of a grant, or the awarding of subsequent grants 
under the same or related grant-in-aid programs, to a different grantee 
if the original grantee violates Federal standards. 

Where an agency lacks statutory authority to invoke one or more 
of the above sanctions and such authority would provide an appropri- 
ate means of insuring compliance with Federal standards in a grant- 
in-aid program administered by the agency, it should seek the necessary 
authority from the Congress. 


E. Other Performance Incentives 

The agency should also consider the provision of incentives, such as 
the contribution of an increased matching share or the awarding of 
additional grant funds, to grantees who fulfill certain Federal goals. 
Where the agency lacks statutory authority to provide compliance 
incentives and such authority would provide an appropriate means 
of ensuring effectuation of Federal objectives in a grant-in-aid pro- 
gram administered by the agency, it should seek the necessary au- 
thority from the Congress. 


(Adopted June 8, 1972) 

In recent years radio and television broadcasters have sought live 
or delayed coverage of many kinds of public governmental proceed- 
ings. While Canon 35 of the Canons of Judicial Ethics of the Ameri- 
can Bar Association states that broadcasting or televising of court 
proceedings "should not be permitted," the reasons for this policy, to 
the extent they are applicable to administrative proceedings, are often 
outweighed by the need to inform the public concerning administra- 
tive proceedings, particularly those of broad social or economic impact, 
and to encourage participation in and understanding of the adminis- 
trative process. Therefore, the public interest will be served by per- 
mitting radio and television coverage of many administrative 
proceedings, subject to appropriate limitations and controls. 


A. Audiovisual Coverage of Public Administrative Proceedings 

An agency which conducts proceedings of interest to the general 
public should adopt regulations, consistent with the principles stated 
below, which state whether audiovisual coverage of each type of pro- 
ceeding is permitted, precluded or left to the discretion of the presiding 
officer or other official under standards determined by the agency. 

1. Proceedings in which audiovisual coverage should he encour- 
aged. — Notice-and-comment and on-the-record rulemaking proceed- 
ings, and adjudications in which a public interest standard is applied 


to authorize service or determine its level or quality, normally involve 
issues of broad public interest. An agency should take affirmative 
steps to encourage audiovisual coverage of public hearings or oral 
presentations in such proceedings, including provision of adequate 
space and facilities, convenient schedules, and the like. 

2. Proceedings in which audiovisual coverage should he excluded. — 
Audiovisual coverage should be excluded in adjudicatory proceedings 
involving the rights or status of individuals (including those of small 
corporations likely to be indistinguishable in the public mind from 
one or a few individuals) in which individual past culpable conduct 
or other aspect of personal life is a primary subject of adjudication and 
the person in question objects to coverage. 

3. Proceedings in which agencies should halance conflicting volumes. — 
In adjudicatory proceedings not governed by paragraphs 1 and 2, 
an agency should determine whether the drawbacks of audiovisual cov- 
erage outweigh the advantages of informing the public. When audio- 
visual coverage is excluded or restricted, the agency should state 
the reasons for such exclusion or restriction on the record of the 

B. Prevention or Disruption 

Audiovisual coverage should be conducted with minimal physical 
intrusion on the normal course of the proceeding. Agencies should im- 
pose reasonable restrictions on lighting, multiple microphones and 
other possible sources of disruption. 

C. Protection of Witnesses 

In any public proceeding a witness should have the right, prior to 
or during his testimony, to exclude audiovisual coverage of his 

Separate Statement of Richard B. Smith; joined hy G. Harold Cars- 
well., Dale W. Hardin., Marion Edwyn Harrison., and Richard G. 
Van Dusen 

The Conference was closely divided on the question of the adoption 
of Eecommendation 32. While we cannot speak for all of those who 
opposed the recommendation, we believe that the encouragement pro- 
vided by Recommendation 32 to the televising and recording of 
administrative proceedings is unwise and undesirable. We believe the 
various agencies should retain their existing discretion to allow or 


not allow coverage of their proceedings, guided by the spirit of Canon 
35 of the Canons of Judicial Ethics. 

In our view the underlying considerations of Canon 35 are fully 
applicable to many, if not most, administrative proceedings conducted 
by Federal agencies. The Canon provides : 

Proceedings in court should be conducted with fitting dignity 
and decorum. The taking of photographs in the courtroom, dur- 
ing sessions of the court or recesses between sessions, and the 
broadcasting or televising of court proceedings, detract from the 
essential dignity of the proceedings, distract participants and wit- 
neses in giving testimony and create misconceptions with respect 
thereto in the mind of the public and should not be permitted. 

We fear that most audiovisual coverage of administrative proceed- 
ings, whether adjudictaory or rulemaking in nature, would disrupt 
and distort such proceedings. Presentation of radio or television cover- 
age almost ine^dtably would be highly selective and episodic, with 
selection laregly governed by dramatic rather than substantive values. 
In the light of televsion's dramatic and emotional impact and pre- 
vailing programing practices, there is a special danger of severe 
distortion. The likelihood of more than a few seconds or minutes of 
viewing is remote, and such spotlighting of a portion of an adminis- 
trative proceeding could only be seen out of context. Televising of 
administrative proceedings also may have adverse effects on the behav- 
ior of participants who would be cast in the role of actors rather than 
engaged in the task of presenting arguments and developing a record 
to a tribunal which then decides the matter before it. 

The presence of lights, cameras and microphones may affect ad- 
versely the dignity and proper focus of an administrative proceeding. 
Although the recommendation attempts to protect against the possi- 
bility of disruption, we are not persuaded that presiding officers, once 
the broadcast media are introduced into a hearing, will be able to keep 
noise and distraction within permissible limits. 

There is little demand for broadcast coverage of administrative 
proceedings. The availability of newscast commentary on proceedings 
as well as newspaper and printed periodical coverage does provide 
public access and information. Moreover, public officials and agency 
administrators often appear on radio and tele\nsion to explain, or to 
be questioned concerning, policies and programs of their agencies. 
The goal of adequately informing the public can be reached without 
impairing the fairness, dignity and conduct of administrative 




(Adopted June 9, 1972) 

The United States acts as the trustee for the land and water rights 
of American Indians. Many legal disputes involving these rights, how- 
ever, are between Indians and agencies of the United States which are 
charged with responsibility to protect Indian interests. Conflict-of-in- 
terest problems arising out of this dual involvement on the part of 
Federal agencies are troublesome and serious. The need exists to pro- 
vide American Indians with independent legal counsel to assure ade- 
quate protection of their claims to natural resources. 


A. Creation of Indian Trust Counsel Authority 

1. Functions. — Legislation should be enacted to establish an Indian 
Trust Counsel Authority as a permanent, independent agency of Gov- 
ernment. Its functions should be, with the consent of an aggrieved 
Indian, Indian tribe, or other identifiable group of Indians, to provide 
legal services necessary to protect their rights or claims to natural 

2. Poioers. — In performance of these functions, the Indian Trust 
Counsel Authority should be empow^ered to : 

I ^ (a) Represent, either through prosecution or by defense, the 
c:p- rights or claims of Indians in any formal or informal admin- 
istrative or judicial proceeding before any agency or court of a 
State or of the United States ; 

(6) Receive and use as a tax-exempt organization funds or 
services donated from any source in addition to such appropria- 
tions as Congress may authorize ; 

(c) Appoint and fix the compensation of employees, regular 
or special counsel, consultants and experts; define their duties 
and responsibilities; and direct and supervise their activities; and 

{d) Continue to receive the benefits and rights of the United 
States as a litigant. 

3. Waiver of sovereign immunity. — The United States should waive 
sovereign immunity with respect to claims, asserted on behalf of 
Indians by the Authority or its special counsel, which involve natural 

493-361 O - 73 


resources, including but not limited to rights in land, water, timber, 
minerals, hunting, and fishing. 

4. Notice of signif.cant proposed actions. — The Departments of 
Agriculture, Defense and the Interior should give notice to the Indian 
Trust Counsel Authority and any affected tribe of any proposed action 
which may significantly affect or impair the rights or claims of Indians. 
The Authority and tribe should have a reasonable opportunity to par- 
ticipate, in the manner appropriate to the nature of the proceeding, 
in the agency process resulting in any such action. This notice require- 
ment, however, should be judicially enforceable only by the Authority 
or by the affected tribe. 

B. Administrative Solutions 

Prior to or in the absence of legislation, the Department of the 
Interior and the Department of Justice should take appropriate steps 
to ameliorate existing conflict-of-interest problems with respect to 
the handling of matters involving natural resources of Indians. The 
Department of the Interior should give consideration to expanding 
to other types of Indian matters the application of recent measures 
which established a separate Indian Water Rights Office. 



(Adopted June 9, 1972) 

The U.S. Board of Parole consists of eight members and employs a 
staff of eight examiners. It conducts about 17,000 proceedings a year 
relating to the grant or denial of parole, involving about 12,000 prison 
interviews, and close to 2,000 proceedings relating to the revocation or 
continuation of parole. The Board controls approximately two-thirds 
of the time actually served under fixed-term Federal prison sentences 
and all of the time served under indeterminate sentences. 

1. Parole. — The Parole Board has published a list of 27 unweighted 
factors which guide its decision whether to grant or deny parole. These 
factors point to the ultimate judgment as to whether release in the case 
of a particular prisoner is likely to lead to further law violation, with 
collateral attention to equalizing disproportionate sentences for similar 


offenses. A more specific formulation of the standards of decision 
should be possible after the development of a body of reasoned deci- 
sions, and after the completion of a pending computer study by the 
National Council on Crime and Delinquency. 

Parole is ordinarily granted or denied largely upon information and 
impressions obtained from the prisoner's file and a brief personal inter- 
view. Under present procedures, the prisoner has no direct knowledge 
of what is in his file, but will usually be given some indication of the 
file's contents by the prison counsel or the hearing examiner. The pris- 
oner cannot always be given unrestricted access to this file, because it 
may contain documents such as psychiatric reports or current criminal 
investigation reports which, if disclosed, might be damaging to the 
prisoner or jeopardize the investigative process. In addition, the pri- 
mary document in the file is usually the pre-sentence report prepared 
by a probation officer, which may have been withheld from the prisoner 
or his counsel in the discretion of the sentencing judge. 

The Board hearing examiner or, less frequently, a Board member 
conducts the parole "hearing" or interview at the prison. The interview 
is conducted, after examination of the file, with only the prisoner, the 
prison counselor and a stenographer present, and typically lasts 10 to 
15 minutes. Counsel for the prisoner is not allowed. The examiner's 
recommendation is dictated after the prisoner leaves the room, but in 
the presence of the prison counselor. 

The examiner's recommendation is not made available to the pris- 
oner. The recommendation is considered by a panel of the Board, con- 
sisting of two members of the Board who call in a thii'd in the event of 
disagreement. The members consult together only in cases of difficulty, 
and typically simply note their conclusion in the file. Under recent 
practice, the deciding members may grant a "Washington Review 
Hearing" at which relatives or counsel may supply written or oral 
statment, but this occurs in only a small portion of the cases. In cases 
of unusual difficulty or notoriety, an en banc decision is made by a 
(juorum of the full Board. Typically advocates or opponents of parole 
appeal before the en hanc Board. Some notation of the reasons for 
grant or denial is added to the file after en hanc consideration but 
usually not otherwise. 

The reasons for Board action are not disclosed to the prisoner. 
Despite legal requirements of public availability, the Board's orders 
and opinions are open to public inspection only when the Board deter- 
mines this to be in the public interest. 

2. Revocation. — On finding that a probation officer's report of a 
parole violation seems well-founded, a member of the Parole Board 
will issue a warrant for the parolee. The Board is in the course of 


formulating standards to govern this discretionary action. When 
the parolee is taken into custody and there is a dispute of fact, he 
is given a hearing either in the locality or at the prison to which 
he will be returned. The prisoner may retain counsel or, if he is 
indigent, may request the appointment of counsel by the district 
court. The hearing is conducted before a Board examiner or, more 
rarely, before a member of the Board. It rarely lasts more than a 
few hours. The parolee may be represented by counsel and introduce 
evidence. "WTiile the warrant will specify the charges, neither the 
parolee nor his counsel may examine the documentary evidence or 
hear or cross-examine adverse witnesses. At the conclusion of the 
hearing the examiner prepares a report and recommendation, which 
are not shown to the prisoner or his counsel. The Board's decision 
is usually unexplained, and reasons are not given the parolee. 

3. 'Workload. — A rough approximation of the Board's workload 
indicates that it must enter about 80 parole and 10 revocation deci- 
sions each working day, and that each examiner must make about 
10 parole recommendations each working day. Even a minimal expla- 
nation of decisions will put some strain upon the Board's Washington 
staff. Any provision for more careful examination of the prisoner's 
file or for more thorough interviewing, both of which seem desirable, 
will require an increase in the number of examiners. 


A. Rules and Standards 

The U.S. Board of Parole should formulate general standards to 
govern the grant, deferral, or denial of parole. This articulation of 
standards can appropriately be deferred until it can reflect both the 
results of the pending computer study of parole decisions and the 
accumulation of a usable number of reasoned decisions. The Board 
in formulating its standards should use typical hypothetical illustra- 
tions in significant areas where promulgation of general rules is not 
yet possible. 

B. The Prisoner's File 

1. Access to the fie. — Under guidelines issued by the Board, the 
prison counselor should disclose the file to the prisoner or his repre- 
sentative in advance of the parole hearing, except for any informa- 
tion as to which disclosure is clearly unwarranted or which has been 
determined by the sentencing judge to be improper. The prisoner 


should be given an oral summary or indication of the nature of any 
relevant adverse information which is not directly disclosed to him. 
2. The pre-sentence report. — The Judicial Conference of the United 
States should be requested to consider directing the sentencing judge 
to indicate on the face of the pre-sentence report {a) whether it has 
been shown to the prisoner or his counsel at the time of sentencing 
and (b) if not, whether it or any designated part should remain 
undisclosed in connection with parole proceedings. Disclosure of pre- 
sentence reports should be encouraged except to the extent that 
the report contains information as to which disclosure is clearly 

C. Right to Counsel at the Parole Interview 

The prisoner should be allowed to be assisted by counsel, or other 
representative of his choice, both in the examination of his file and 
at the parole interview. The participation of the prisoner's counsel 
or representative should ordinarily be limited to offering remarks at 
the close of the interview between the examiner and the prisoner. Bar 
associations, public interest law firms, and other professional organi- 
zations should be urged to offer assistance to indigent prisoners pend- 
ing evaluation by appropriate governmental institutions of the need 
for and desirability of public funding of these legal services. 

D. The Parole Decision 

1. Reasons for deferral or denial. — A statement of reasons for the 
deferral or denial of parole should in all instances be given the 
prisoner. In some cases the Board can simply adopt as its own decision 
the examiner's recommendation. The cases where this is not appro- 
priate may well be so voluminous as to require the use of a check-list 
form, such as that with which the Board is now experimenting, but 
there should in each such case be added at least a sentence or two of 
individualized explanation. 

2. Prototype decisions. — The Board should develop a body of fully 
reasoned decisions — whether granting, denying or deferring parole — 
in typical or recurrent fact situations. These decisions should serve as 
time-saving precedents and as the raw material for the subsequent 
formulation of standards. 

3. Public availability. — The Board's decisions should be open to 
public inspection. These decisions, including examiners' recommenda- 
tions which may be adopted by the Board, should be worded im- 
personally and designed to allow easy deletion of the prisoner's name 
in order to avoid a clearly unwarranted invasion of privacy. 


E. Parole Revocation 

1. Adverse evidence. — The parolee or his counsel should have access 
to the written evidence against him, and should be entitled to hear 
and examine adverse witnesses who appear at the revocation hearing. 

2. Recom/mended decision. — A copy of the hearing officer's recom- 
mendation should be given the parolee, and he should be given an 
opportunity to comment or reply in writing before the Board enters 
its decision. 

3. Board decision. — The Board should state the reasons for its 
decisions and make them available to public inspection in the same 
manner as recommended above for decisions denying or deferring 

F. Implications for Board Staffing 

Prior to its next budget request, the Board should estimate the 
additional personnel needed to implement these recommendations or 
otherwise to improve its procedures, such as, for example, doubling 
its staff of examiners to permit more thorough consideration of parole 
applications. The Board should then make a vigorous effort to secure 
the increase in authorization and appropriations which it considers 
necessary to this important end. 



(Adopted June 9, 1972) 

The determinations of the Civil Aeronautics Board, Federal Com- 
munications Commission, Federal Power Commission, and Inter- 
state Commerce Commission, whether to exercise or refrain from exer- 
cising their power to suspend and investigate newly filed rate pro- 
posals, are of great importance to regulated companies, their customers, 
and the general public. Although a decision not to suspend does not 
preclude an agency investigation at a later date (either sua sponte 
or upon complaint), inertia then plays a significant role. Moreover, 
once a tariff change is effectuated, in most cases the burdens of dis- 
lodging an existing rate rest upon its challenger. Since suspension of 
a rate initiates a proceeding that is likely to be protracted and costly. 


a decision to suspend is also an important action. The procedures by 
which rate proposals are suspended, including the various forms of 
private negotiation that often accompany the suspension process, 
can and should be improved. 


A. Suspension of Rate Proposals 

1. Statement of reasons for suspension. — A rate-making agency in 
exercising its statutory power to suspend rate proposals should state 
the reasons for suspension to the extent practicable. Identification by 
the agency of the limits and sources of its concern, and not merely a 
recital of statutory criteria, will enable the proponent of the rate to 
make a more informed decision whether to withdraw the proposal, 
modify it or persist in it, and will also serve to focus the areas of con- 
troversy in the event that the regulated company stands on its pro- 
posal and the matter goes to hearing. 

2. '■'' Speaking'''' orders of suspension. — Rate-making agencies, which 
are not authorized to prescribe rates without public proceedings, should 
not provide in suspending a rate a detailed statement of a substitute 
proposal that the agency would allow to go into permanent effect 
without suspension. The expression of detailed agency views concern- 
ing an acceptable rate should not be used as a means of prescribing a 
rate without allowing interested persons an opportunity to 

B. Negotiation Between the Agency and the Regulated 


A rate-making agency should not rely on a pattern of regulation 
consisting largely or solely of informal negotiation by the members 
of the agency with regulated companies in order to influence, shape or 
pre-audit rate proposals to be filed in the future. In the short run 
negotiation may appear efficient because it avoids the burden of com- 
plex public proceedings. In the long run, however, over-reliance on 
negotiation may inhibit the development of an adequate staff, com- 
promise the independence of the agency in passing on protests and 
complaints against negotiated rates, delay the development of an 
adequate methodology of regulation, and result in a failure to formu- 
late visible and predictable standards. The development of such 
standards is critical to expeditious disposition of rate proceedings. 


Since negotiation with respect to rates could preclude effective par- 
ticipation by others who have a direct interest in the outcome, any 
negotiation undertaken should, to the extent practicable, be conducted 
in proceedings open to them. 

C. Authorization of Temporary and Partial Increases 

Regulatory statutes should be amended, to the extent that existing 
authority is lacking, to authorize rate-making agencies, as an adjunct 
to their power to suspend, to allow temporary rate increases, including 
partial increases, subject to appropriate conditions (including, where 
practicable, provision for refund if the interim increase is ultimately 
found unjustified). A temporary increase should be authorized only 
when the agency makes a preliminary judgment, on the basis of a 
written showing by the regulated company and an opportunity for 
comment thereon by affected persons, that a proposed increase is jus- 
tifiable at least in part. Exercise of authority to grant temporary 
increases, rather than suspending a proposed increase in full or allow- 
ing it to go into effect without suspension, would mitigate the effects 
of regulatory lag. Similar authority to allow temporary and partial 
rate reductions, or other temporary changes, should also be sought 
where appropriate. 

D. Settlement or Rate Proceedings 

1. Settlement hy agreement of the parties. — Settlement of rate pro- 
ceedings by agreement among the parties, either before or after an 
evidentiary hearing, is appropriate and desirable if the agency, on 
the basis of the available record and any further written submis- 
sions, is in a position to determine that the disposition is in the public 

2. Settlem£nt in the absence of agreemerd. — Disposition of a rate 
proceeding on the basis of a proposed settlement, in the absence of 
full agreement by the parties, should turn upon the nature of the 
issues involved in the proceeding and the appropriateness of an evi- 
dentiary hearing for a fair, accurate, and efficient decision of those 
issues. The degree of consensus among the parties and the nature of 
the interests represented by any objecting parties are factors which 
the agency may consider in determining whether a settlement is in 
the public interest. In situations in which a participant who is object- 
ing to a proposed disposition does not show that a genuine issue of 
material fact is involved, an agency may dispose of a rate proceeding 


on the basis of written submissions without holding an evidentiary 
hearing for purposes of cross-examination. The Administrative Pro- 
cedure Act requires cross-examination only insofar as it is required 
"for a full and true disclosure of the facts," 5 U.S.C. § 556 (d) . 

E. Screening of Tariff Adjustments by the Interstate Commerce 

Commission Staff 

The disposition of rate matters by the Interstate Commerce Com- 
mission presents special problems because of the enormous volume 
of tariff adjustments, given the existing regulatory scheme, which 
it receives from a very large number of companies performing a 
wide variety of transportation services. The Commission, largely be- 
cause of limitations of manpower, now relies almost entirely upon 
the self-interest of competitive carriers and of shippers to alert it 
by the filing of protests to matters warranting its serious considera- 
tion. To the extent that resources and priorities permit, the Commis- 
sion should assume a greater burden of screening tariff adjustments 
on its own initiative. 

Separate Statement of Max D. Paglin 

I support the objectives of this recommendation. However, I do not 
believe that informal negotiation on rate proposals between an agency 
and a regulated company, when carried on "with appropriate proce- 
dural safeguards, would have the negative effects on agency perform- 
ance which are indicated in Section B of the Kecommendation. More- 
over, I am of the opinion that, although the Recommendation was 
improved by the amendments adopted during the debates at the 
Plenary Session, Section B still fails to recognize a practical and criti- 
cal distinction between negotiated settlements involving rate increases 
and rate decreases. In the latter situation, the speedy implementation 
of rate reductions for the benefit of the rate paying public is a highly 
desirable objective. To the extent that the last sentence of the Recom- 
mendation (regarding participation in such negotiations by "others" 
who have an interest in the outcome), would have the effect of delay- 
ing the institution of rate reductions, I would be opposed to any 
requirement which goes beyond a statement leaving such matters to 
the agency's discretion, to be exercised in the circumstances of the 
particular case. 





(Adopted Dec. 14, 1972) 

The Administrative Procedure Act, 5 U.S.C. § 553 (1970), provides 
simple, flexible and efficient procedure for rulemaking, including pub- 
lication of a notice of proposed rulemaking in the Federal Register, 
opportunity for submission of written comments, and opportunity in 
the discretion of the agency for oral presentation. This notice-and- 
comment rulemaking procedure is extensively used and on the whole 
has worked well. Each agency is of course free to provide additional 
procedural protection to private parties in any proceeding. 

There are statutes that require procedures in addition to those re- 
quired by § 553. Some require opportunity for oral argument, some 
require agency consultation with advisory committees, and some re- 
quire trial-type procedure. 

The Administrative Conference believes that statutory requirements 
going beyond those of § 553 should not be imposed in absence of special 
reasons for doing so, because the propriety of additional procedures is 
usually best determined by the agency in the light of the needs of 
particular rulemaking proceedings. The Administrative Conference 
emphatically believes that trial-type procedures should never be re- 
quired for rulemaking except to resolve issues of specific fact. 


1. This recommendation applies only to rules of general applica- 
bility and not to rules of particular applicability, only to substantive 
rules and not to procedural rules, only to legislative rules and not to 
interpretative rules, and only to rulemaking governed by § 553 and 
not to rulemaking excepted from the requirements of § 553. 

2. In future grants of rulemaking authority to administrative agen- 
cies, Congress ordinarily should not impose mandatory procedural 
requirements other than those required by 5 U.S.C. § 553, except that 
when it has special reason to do so, it may appropriately require oppor- 
tunity for oral argument, agency consultation with an advisory com- 
mittee, or trial-type hearings on issues of specific fact. 

3. Congress should ne^-er require trial-type procedures for resolving 
questions of policy or of broad or general fact. Ordinarily it should 
not require such procedures for making rules of general applicability, 
except that it may sometimes appropriately require such procedures 


for resolving issues of specific fact. Existing statutes imposing a re- 
quirement of trial-type procedures for rulemaking of general appli- 
cability should be reexamined in light of these principles. 

4. A study of proceedings conducted by the Food and Drug Admin- 
istration pursuant to § 701 (e) of the Federal Food, Drug and Cosmetic 
Act, 21 U.S.C. § 371(e) (1970), has demonstrated that that section 
should be amended so as to make clear that trial-type hearings are not 
required except on issues of specific fact. 

5. Each agency should decide in the light of the circumstances of 
particular proceedings whether or not to provide procedural protec- 
tions going beyond those of § 553, such as opportunity for oral argu- 
ment, agency consultation with an advisory committee, opportunity 
for parties to comment on each other's written or oral submissions, a 
public-meeting type of hearing, or trial-type hearing for issues of spe- 
cific fact. 



(Adopted Dec. 14, 1972) 

Federal administrative agencies enforce many statutory provisions 
and administrative regulations for violation of which fixed or variable 
civil money penalties may be imposed.^ During Fiscal 1971, seven 
executive departments and thirteen independent agencies collected 
well in excess of $10 million, in over 15,000 cases; all evidence points to 
a doubling or tripling dollar magnitude and substantially increasing 
caseload within the next few years. 

Increased use of civil money penalties is an important and salutary 
trend. When civil money penalties are not available, agency adminis- 
trators often voice frustration at having to render harsh "all-or-noth- 
ing decisions" {e.g.^ in license revocation proceedings), sometimes ad- 
versely affecting innocent third parties, in cases in which enforce- 
ment purposes could better be served by a more precise measurement 
of culpability and a more flexible response. In many areas of increased 

* For purposes of this recommendation, no distinction has been drawn between sanctions 
denominated "money penalties" and sanctions denominated "forfeitures" (.e.g., in FCC 
legislation) and "fines" {e.g., in Postal Service legislation) so long as (i) the sanction is 
classified as civil and (ii) money is, in fact, subject to collection by an agency or a court. 
Excluded are situations Involving penalties or liquidated damages assessed pursuant to the 
terms of a government contract or sums withheld or recovered for failure to comply with the 
terms of a government grant. 


concern {e.g., health and safety, the environment, consumer protection) 
availability of civil money penalties might significantly enhance an 
agency's ability to achieve its statutory goals. 

In developing a range of sanctions adequate to meet enforcement 
needs. Congress and agencies must often determine whether a "criminal 
fine, or a "civil money penalty," or both, should be applied to a given 
regulatory offense. The choice they make has large consequences. Crimi- 
nal penalties expose an offender to the disgrace and disabilities associ- 
ated with "convictions"; they require special procedural and other 
protections; and they cannot be imposed administratively. These 
factors make it appropriate to consider whether criminal sanctions 
should not be supplemented or replaced by civil money penalties. 

Under most money penalty statutes, the penalty cannot be imposed 
until the agency has decided in a de novo adjudication in Federal dis- 
trict court, whether or not an administrative proceeding has been held 
previously. The already critical overburdening of the courts argues 
against flooding them with controversies of this type which generally 
have small precedential significance. 

Because of such factors as considerations of equity, mitigating cir- 
cumstances, and the substantial time, effort and expertise such litiga- 
tion often requires in cases usually involving relatively small sums (an 
average of less than $1,000 per case), agencies settle well over 90% of 
their cases by means of compromise, remission, or mitigation. Settle- 
ments are not wrong per se, but the quality of the settlements under the 
present system is a matter of concern. Regulatory needs are sometimes 
sacrificed for what is collectible. On the other hand, those accused 
sometimes charge that they are being denied procedural protections 
and an impartial forum and that they are often forced to acquiesce 
in unfair settlements because of the lack of a prompt and economical 
procedure for judicial resolution. Moreover, several agency adminis- 
trators warn that some of the worst offenders, who will not settle 
and cannot feasibly be brought to trial, are escaping penalties 

This recommendation is intended to meet the problems posed above. 


1. Federal administrative agencies should evaluate the benefits 
which may be derived from the use (or increased use) of civil money 
penalties as a sanction. Such penalties should not be adopted as a means 
of supplanting or curtailing other private or public civil remedies. 


2. Civil money penalties are often particularly valuable, and gen- 
erally should be sought, to supplement those more potent sanctions 
already available to an agency — such as license suspension or revoca- 
tion — whose use may prove (a) unduly harsh for relatively minor 
offenses; or (b) infeasible because, for example, the offender provides 
services which cannot be disrupted without serious harm to the public. 

3. Each federal agency which administers laws that provide for 
criminal sanctions should review its experience with such sanctions 
to determine whether authorizing civil money penalties as another or 
substitute sanction would be in the public interest. Such authority for 
civil money penalties would be particularly appropriate, and gen- 
erally should be sought, where offending behavior is not of a type 
readily recognizable as likely to warrant imprisonment, 

B. Adjudication of Civil Money Penalty Cases in an 
Administrative Imposition System 

1. In some circumstances it is desirable to commit the imposition 
of civil money penalties to agencies themselves, without subjecting 
agency determinations to de novo judicial review. Agencies , should 
consider asking Congress to grant them such authority.^ 

Factors whose presence tends to commend such a course with respect 
to a particular penalty provision include the following : 

(a) a large volume of cases likely to be processed annually; 

(b) the availability to the agency of more potent sanctions with the 
resulting likelihood that civil money penalties will be used to moderate 
an otherwise too harsh response ; 

(c) the importance to the enforcement scheme of speedy adjudi- 
cations ; 

(d) the need for specialized knowledge and agency expertise in the 
resolution of disputed issues; 

(e) the relative rarity of issues of law (e.^., statutory interpreta- 
tion) which require judicial resolution; 

(f ) the importance of greater consistency of outcome (particularly 
as to the penalties imposed) which could result from agency, as 
opposed to district court, adjudications; and 

(g) the likelihood that an agency (or a group of agencies in com- 
bination) will establish an impartial forum in which cases can be 
efficiently and fairly decided. 

^ Due to the special procedures and status of the United States Tax Court, the rationale 
for administrative imposition may have only limited applicability to civil money penalties 
administered by the Internal Revenue Service. 


Considerations such as those set forth above should be weighed 
heavily in favor of administrative imposition when the usual monetary 
penalty for an offense or a related series of offenses would be relatively 
small, and should normally be decisive when the penalty would be un- 
likely to exceed $5,000. However, the benefits to be derived from civil 
money penalties, and the administrative imposition thereof, should 
also be considered when the penalties may be relatively large. 

2. An administrative imposition system should provide : 

(a) for an adjudication on the record pursuant to the Administra- 
tive Procedure Act, 5 U.S.C. §§ 554-57 (1970) at the option of the 
alleged offender or the agency ; 

(b) for finality of an agency's decision unless appealed within a 
specified period of time ; 

(c) that, if the person on whom the penalty is imposed appeals, an 
agency's decision will be reviewed in United States Courts of Appeals 
under the substantial evidence rule in accordance with the Adminis- 
trative Procedure Act, 5 U.S.C. § 706(e) ; 

(d) that issues made final by reason of (b) above and issues which 
were raised, or might have been raised, in a proceeding for review 
under (c) above may not be raised as a defense to a suit by the United 
States for collection of the penalty. 

Agencies should adopt rules of practice which will enable just, inex- 
pensive and speedy determinations. They should provide procedures 
for settlement by means of remission, mitigation or compromise. 



(Adopted Dec. 15, 1972) 

Section 10(b) (3) of the Military Selective Service Act, 50 U.S.C. 
App. § 460(b) (3) (1970), in terms forbids judicial review^ of adminis- 
trative determinations relating to the classification and processing 
of Selective Ser\ice registrants except as incident to criminal prose- 
cutions. In fact, the writ of habeas corpus is available to a regis- 
trant who submits to induction and wishes to challenge the classi- 
fication resulting in his induction, and the Supreme Court has held 
that Section 10(b) (3) does not preclude preinduction judicial re- 
view in those cases where it is alleged that a classification or other 
Selective Service administrative action is cearly contrary to statute. 


Discretionary determinations based upon the facts of particular cases 
remain subject to the Section 10(b) (3) proscription of preinduction 
review. Almost the only such discretionary determinations today that 
are likely to be litigated are those involving claims of conscientious 
objector status. Amendments to the Act in 1971 reduced the number 
and kinds of discretionary determinations made by Selective Service 
officials. Those same amendments and consequent amendments of regu- 
lations have established new procedural protections for registrants 
that reduce the pressure for judicial review of Selective Service deter- 
minations and at the same time facilitate review in cases where it 
is had. 

Principles of fairness and efficiency strongly urge that preinduc- 
tion judicial review should be available generally in Selective Service 
cases, subject to certain qualifications. In addition, there should be 
established a procedure whereby local draft boards and appeal boards 
may obtain expert advice on conscientious objector claims, the resolu- 
tion of which is among the most difficult problems known to our 
legal system. Finally, the Selective Service System should be en- 
couraged to make additional reforms in its procedures in specific 
respects in order further to reduce the need for and facilitate judicial 
review. The present Recommendation is addressed to all of these 


A. Preinduction Judicial Review 

Section 10(b) (3) of the Military Selective Service Act, 50 U.S.C. 
App. 460(b) (3) (1970) , should be amended to delete the nominal pro- 
hibition of judicial review of administrative determinations relating 
to the classification and processing of registrants except as a defense 
to a criminal prosecution. In lieu thereof the Act should expressly 
authorize preinduction judicial review at the behest of any registrant 
seeking to challenge his classification through a suit for declaratory 
and injunctive relief brought in a federal district court. Elements 
of and conditions upon such a suit shoidd include the following: 

1. Reasonable restrictions would be imposed with respect to the 
timing of the suit. These would be related to the Selective Service 
System's procedure for designating registrants likely to be drafted 
considerably in advance of their scheduled induction date and would 
authorize preinduction suits within a limited period, e.g.^ 30 days, 
after physical examinations had been taken and administrative rem- 
edies exhausted.® 

« The views of the Selective Service System and of the Judicial Conference should be taken 
into account In the prescription of the period of the limitation. 


2. The mere pendency of a suit would not operate as a stay of 
induction. If it appeared that a suit could not be finally determined 
before a scheduled induction, any request for a stay of induction would 
be ruled upon according to the traditional standards governing inter- 
locutory injunctive relief. 

3. A determination on preinduction judicial review that the regis- 
trant's classification was lawful would be conclusive in any subse- 
quent criminal prosecution. 

4. The President would be empowered to suspend the availability 
of preinduction review during any period of declared war or national 

5. The ordinary requirement of exhaustion of administrative 
remedies would not be affected. 

B. Referral of Conscientious Objector Claims 

The Military Selective Service Act should be amended by the addi- 
tion to Section 6(j), 50 U.S.C. App. §456(j) (1970), of a provision 
for the referral of contested and difficult concientious objector claims 
to the appropriate State Director's office for advice. Such referral 
would be available at the instance of a local board or an appeal board 
or upon the request of a registrant appealing the denial of a conscien- 
tious objector claim by, his local board. Consideration of such claims by 
the State Director's office should be completed within a specified and 
limited period (for example, 60 or 90 days) unless exceptional cir- 
cumstances are presented. The response by the State Director's office 
in such cases should take the form of an advisory opinion or recom- 
mendation that would be part of the administrative record to be con- 
sidered by a reviewing court but would not be binding on the local 
board or the appeal board. 

C. Further Procedural Reforms 

The Selective Service System is encouraged to amend its procedural 
regulations in the following respects : 

1. To allow registrants to be accompanied, represented and advised 
by counesl or other authorized representatives at local and appeal 
board appearances. 

2. To provide for the preparation of suitable transcripts of local 
board and appeal board proceedings involving appearances by 

^ Transcripts Initially could simply take the form of tape recordings, which would be pre- 
pared in typewritten form only if necessary for subsequent review. 


3. To provide a permanent staff for the National Appeal Board and 
to expand the Board's jurisdiction to include discretionary review of 
any registrant's claim regardless of whether the appeal board con- 
sidering the case had been unanimous. 

Separate Statement of Henry N. Williams 

In accord with 5 U.S.C. § 575(a)(1) (1970), and the first clause 
of section 2(a) of the Bylaws of the Conference, I record my dissent 
to this recommendation. 

The Assembly, in making this recommendation, requests the Con- 
gress to reconsider important and sound recent judgments and urges 
the Director of Selective Service to accomplish by regulation that 
which the Congress has repeatedly and wisely declined to do by leg- 
islation. A majority of the members of the Assembly have committed 
the prestige of the Conference to a recommendation that, at best, can 
only be characterized as most unfortunate. 

Were the principal features of this recommendation to be imple- 
mented our courts would be further burdened, "informal and ex- 
peditious processing which is required in selective service cases" would 
be impossible, and great unfairness to the overwhelming majority of 
registrants of the Selective Service System would inevitably result 
without substantial compensating benefits. 


(Adopted Dec. 15, 1972) 

A critical part of the mission of the Administrative Conference is 
to study the processes of government to assure the full protection of the 
rights of private citizens, including the rights of federal employees. 
At the same time, the Conference is equally concerned about assisting 
government agencies to devise and implement efficient administrative 
procedures that will facilitate accomplishment of their varied 

The Civil Service Commission and other government agencies each 
year conduct a large number of formal personnel action proceedings 
that involve charges of personal misconduct, poor job performance, 
or other behavior which reflects adversely on the individual employee. 

493-361 O - 73 


Each year several thousand adverse personnel action appeals are 
decided throughout the Government; the Civil Service Commission 
alone adjudicates well over 1200 appeals annually. The nature of these 
cases and the size of the caseload make it imperative both that proceed- 
ings be conducted with scrupulous fairness, and that procedures be 
neither too costly nor time-consuming. While existing adverse action 
procedures have attempted to meet these objectives, the Conference 
believes that implementation of this recommendation will yield sub- 
stantial improvements in many highly significant respects. 

This recommendation is intended to apply only to those classes 
of federal civilian employment currently entitled to adverse action 
procedures, as identified in Subchapter S2 of Federal Personnel 
Manual Supplement 752-1. 

A. Definitions and Standards 

1. Adverse Action. In all cases in which an employing agency takes 
a personnel action adversely affecting an employee on the basis of his 
conduct or performance, the employee should be afforded an opportu- 
nity for an evidentiary hearing and his case should be decided on the 
basis of the record made at the hearing. 

Such procedures are inappropriate, however, for use in situations in 
which an agency action made on the basis of broad managerial consid- 
erations of agency structure or resource allocation (e.g., change in job 
classification, reduction in force) has incidental adverse effects on cer- 
tain agency employees. The Civil Service Commission should seek 
legislation redefining the category of "adverse action" to exclude there- 
from personnel actions not based on the individual employee's conduct 
or performance. However, in any proceeding to effect a personnel 
action assertedly based on managerial considerations, the employee 
should retain the right to challenge the bona fides of the agency's 

2. Efficiency of the Service. The Civil Service Commission should 
publish regulations or interpretive rules elaborating in as much detail 
as practicable the statutory standard of "efficiency of the service." 

B. Procedures for Agency Hearings 

1. All employing agencies should establish procedures for personally 
advising an employee who has received a letter of proposed adverse 
action about the consequences of the action proposed and the proce- 
dures available for contesting it, which should continue to include the 


right to respond to the employing agency's charges prior to an eviden- 
tiary hearing. 

2. An employee against whom an adverse action is proposed should 
have an opportunity for a prompt evidentiary hearing before the 
action becomes effective. However, if the employing agency determines 
that retention of the employee in his current duty assignment will 
adversely affect the ability of his office or installation to perform its 
functions, the employing agency should be able, pending its final deci- 
sion (a) to reassign the employee ; (b) to place the employee on admin- 
istrative leave with pay; and (c) if, for a cause attributable to the 
employee, the hearing is not commenced within 30 days after the 
agency notifies him of its readiness to proceed or has not resulted in a 
final agency decision within 60 days after such notification, to place 
the employee on leave without pay. 

3. Except in extremely rare cases where an employing agency can 
establish good cause for keeping the hearing closed, an employee sub- 
ject to adverse action should have a right to elect a hearing that is open 
to the public. An employee is entitled to a private hearing, however, at 
which he may be accompanied by an observer of his choosing, in addi- 
tion to any representative. This recommendation is not intended to 
limit the hearing officer's traditional authority to exclude other wit- 
nesses during the taking of testimony, or to maintain order and 

4. The Civil Service Commission should assign the hearing officers 
to conduct hearings before employing agencies. A hearing officer should 
be suitably equipped by training and experience to conduct such per- 
sonnel hearings, and, unless he is an administrative law judge, should 
not be an employee of the charging agency. Ordinarily, hearing officers 
should be drawn from a pool established and employed by the Civil 
Service Commission, but when appropriate the Commission should be 
able to assign as hearing officers other persons with the prescribed 

5. Civil Service Commission regulations should make clear that at 
any hearing the employing agency has both the burden of coming for- 
ward with evidence and the burden of persuasion. 

6. The hearing officer should use a pre-hearing conference or other 
means to identify and limit the hearing to the trial of material issues 
of fact as to which the parties genuinely disagree. The hearing officer 
should also be authorized to resolve summarily those material issues of 
fact as to which he is satisfied there is no genuine disagreement. 

7. The hearing officer should be authorized to order an employing 
agency to produce witnesses in its employ or documentary evidence 
that he believes may be relevant to an employee's case. He should be 


free to call witnesses himself, to question witnesses for both parties, and 
to provide g'uidance to employees who are not represented. With the 
completion of the hearing, the evidentiary record should be considered 
closed for purposes of the employing agency's decision and any appeal 
by the employee to the Civil Service Commission. 

8. The hearing officer should make factual findings and prepare a 
proposed decision, which would be submitted to the official designated 
by the employing agency to make the agency decision and made avail- 
able to the parties along with the transcript of the hearing. The parties 
should have an opportunity {e.g.. ten days) in which to submit written 
argument, including objections to the proposed decision, to the decid- 
ing agency official. If the deciding official does not accept the hearing 
officer's proposed decision, he should prepare a formal agency decision 
that, among other things, states specifically the reasons for rejecting 
the hearing officer's findings of recommended disposition. The employ- 
ing agency should be able to make its personnel action fully effective 
upon the issuance of its decision, and any subsequent appeal should not 
have the effect of postponing such effectiveness unless the employing 
agency otherwise directs. 

C. Procedures for Appeals From Agency Decisions 

1. Employing agency appeals systems, apart from that required by 
paragraph B(8) {i.e.. a final agency decision following the hearing at 
a level higher than that proposing the action) should be abolished. 

2. An employee against whom adverse action is taken should have an 
opportunity for a single appeal outside his agency, to a central appel- 
late authority within the Civil Service Commission. 

3. The Civil Service Commission's appellate authority should custo- 
marily be limited in its review to the record compiled at the employing 
agency. Upon the motion of an employee, however, the authority 
should be able to admit, or remand to the hearing officer for the admis- 
sion of, evidence that the employee could not reasonably have produced 
at the original hearing, subject to the employing agency's right to 
respond or rebut. 

4. The Commission's appellate authority should have authority to 
affirm, or to reverse, or to modify the employing agency's disciplinary 
action in any appeal. 

5. The Commission's appellate authority should assign cases for 
decision by lot or by rotation so far as practicable, and permit 
announcement of dissenting and concurring views. 


6. The Civil Service Commissioners should retain discretionary 
authority to reopen and decide exceptional cases upon the petition of 
either the employing agency or the employee. 

7. Employing agency and Commission decisions in adverse action 
cases should be publicly available after minimum editing necessary to 
protect employee privacy. 

D. Ex Parte Communications 

1. (a) At no time should officials of the Civil Service Commission 
who participate in or are responsible for the disposition of em- 
ployee appeals provide advice to either party or to the hearing 
officer on the initiation, processing, or disposition of any adverse 

(b) Other Civil Service Commission officials should not advise or 
consult with either party, or their representatives, regarding the 
merits of any case that has been formalized by the issuance of a 
letter of proposed adverse action. 

2. Hearing officers who conduct agency hearings and Civil Service 
Commission officials who participate in or are responsible for deciding 
employee appeals should be free from all ex parte influence or advice — 
including communications from employing agencies, employee repre- 
sentatives, and other Commission employees — relating to the factual 
issues or appropriate disposition of any adverse action or appeal. 
Expert professional advice on the facts or disposition of a case (such 
as the evaluation of a job classification specialist) should only be 
received on the record, subject to the right of both parties to respond. 


With the additional safeguards of the independence of the Civil 
Service Commission's appellate authority, proposed under C and D, 
above, it is not necessary to establish a new, independent agency to 
adjudicate adverse action appeals. 

F. Effect on Employee Grievance Procedures 

The provisions of this recommendation are not intended to supplant 
or preclude provision for employee grievance procedures in existing 
or future collective bargaining agreements. 




71-1 through 72-8 


Report in Support of Recommendation 71-1 (As published in: Michigan Law 
— ^ Review, Vol. 70, No. 1 (Nov. 1971) ). 


Ernest Gellhorn* and Paul B. Larsen** 

I. Introduction 

SINCE administrative hearings take many forms, agency rules of 
practice necessarily vary. One of the original justifications for 
creating administrative agencies was to promote the development 
of individual procedural responses to particular regulatory needs. 
Obviously, the procedures in an unfair labor practice case have little 
in common with those in utility rate proceedings. Hence, it would 
be counterproductive to straight-jacket the proceedings of one with 
the rules of the other. Nevertheless, comparable agency problems 
may lend themselves to a uniform response. Interlocutory appeal 
practices for reviewing a hearing examiner's interim rulings fall 
into this category.^ 

The advantages of immediate agency review of an examiner's 
interlocutory rulings are manifold. It avoids the manifest waste of 
time and money that results from the parties being forced to await 
the examiner's initial decision and then having the challenged 
ruling, which was made at the outset of the proceeding, reversed. 
Even if a rehearing is not ordered, the cost of the unnecessary trial 
is obvious. Moreover, interlocutory review assures that trial rulings 
are correct. It affords examiners guidance on procedural questions 
when most needed — especially since procedural issues tend to be 
buried in the final appeal. In other words, an interlocutory appeal 
may satisfy the demands of fairness prior to the final appeal. 

However, the costs of interlocutory appeal may readily offset its 
gains. An interim appeal can either immediately delay the proceed- 
ing or ultimately have a delaying effect. The appeal interrupts the 
proceeding, interferes with the examiner's control of the case, wastes 

• Professor of Law, University of Virginia. B.A. 1956, LL.B. 1962, University of 
Minnesota. — Ed. 

•• Attorney, Department of Transportation. A.B. 1953, Wilmington College; LL.B. 
1960, University of Cincinnati; LL.M. 1962, New York University; LL.M. 1965, McGill 
University. — Ed. 

The opinions expressed in this Article are those of the authors and do not 
necessarily represent those of the Department of Transportation. 

1. This study and its recommendations deal only with formal administrative 
adjudications or other trial-type proceedings presided over by a hearing examiner. 


time and money if the only consequence of the appeal is to affirm 
the examiner's ruling, and distracts the review authority from more 
important policy functions. Even worse, a costly interlocutory appeal 
may be unnecessary if the challenged issue becomes moot or non- 
prejudicial as a result of the initial decision. Not only might single 
appeals from the initial decision be more economical, but the review 
authority may also be unable to review interlocutory issues ade- 
quately if the question is premature. 

There are, therefore, substantial arguments for and against per- 
mitting interlocutory review of an examiner's rulings. With so even 
a balance in principle, factual analysis of agency practices becomes 
critical. This study measures agency practice against the standard 
that hearing procedures must be fair, and unnecessary delay is as 
unfair to the parties and the public as are arbitrary and erroneous 
interlocutory rulings. 

II. Interlocutory Review by Administrative Agencies 
A. Scope and Methodology 

With these considerations in mind, we reviewed the interlocutory 
appeal case records and rules of six federal agencies. Of the 
major independent agencies, the study covered all except the Inter- 
state Commerce Commission (ICC), which was omitted because it 
does not maintain separate interlocutory review records. ^ The ICC's 
position is not as unusual as this comment might suggest. Even 
though interlocutory appeals are frequent in many agencies, only the 
Federal Communications Commission maintains summary statistics 
identifying the number of appeals, the delay (if any) that they cause, 
and the decisions of the reviewing authority. Consequently, we had 
to develop most of the data reported here from the agencies' records. 
The data collected are not precisely comparable since the agencies' 
methods of maintaining their files and case records differ. Never- 
theless, we were able to gather sufficient information to present a 
description of the operation of each agency's interlocutory review 

This study covers agency performance during three fiscal years, 
beginning with 1968. In addition to examining each agency's rules of 
practice, we reviewed the records of those agency hearings presided 

2. After a brief sampling of the Interstate Commerce Commission's [hereinafter 
ICC] case records, we recognized that we could not obtain a worthwhile representative 
sampling of its massive caseload without inordinate effort — nor could we fill the 
information gap by conducting individual interviews or by making a selective review 
of the ICC's records. 


over by a hearing examiner in which the examiner's ruling was sub- 
jected to interlocutory review. Initially, we concentrated on basic 
statistics, such as the number of hearings, the frequency of inter- 
locutory review, the delays caused, and the review authority's de- 
cisions on appeal. The collection of follow-up data depended upon 
the pattern that the basic data disclosed. To these quantitative 
measures, we added qualitative impressions garnered from inter- 
views with review authorities, hearing examiners, staff attorneys, and 
private practitioners. Our primary objective was to measure the 
impact of different procedures on interlocutory review. We recog- 
nized, of course, that other variables {e.g., the type of hearing, the 
quality of agency personnel, the importance of the ultimate decision 
to the parties) have a bearing on each agency's performance. We 
identified these variables and sought to assess their individual im- 

B. Current Interlocutory Review Procedures 
and Their Impact 

1. Federal Communications Commission 

Trial-type hearings at the Federal Communications Commission 
(FCC) usually involve broadcast applications, renewals, or transfers. 
These are essentially licensing proceedings, with disputed issues aris- 
ing when more than one applicant seeks the same license or when 
either the staff or another licensee objects or, as happens occasionally, 
when a representative of the community opposes the application.^ 
However, many FCC hearings are almost indistinguishable from 
complaint cases. The latter are primarily disciplinary actions seeking 
to revoke a station's operating license. Here delay usually favors the 
challenged party since the license continues until the proceeding is 

Until November 1970, the FCC freely allowed interlocutory ap- 
peals from examiner rulings through an intermediate appellate re- 
view board.^ The Commission's experience with this liberal practice 
was remarkable. Hearings were not inordinately di':rupted or de- 
layed, nor was the time of agency members unnecessarily consumed. 
Nevertheless, FCC interlocutory appeals as a matter of right are now 
restricted to a few particularly sensitive questions and interlocutory 
review by the Review Board is primarily within the examiner's dis- 

3. Federal Communications Commission [hereinafter FCC] examiners also preside 
over other types of rate and licensing hearings. 

4. For a careful analysis of the FCC's review board, see Freedman, Review Boards 
in the Administrative Process, 117 U. Pa. L. Rev, 546 (1969). 


cretion. The Board also issues interlocutory rulings on questions 
beyond the examiner's authority. These rulings on direct petition, 
as well as the Board's rulings on appeal from interlocutory orders 
issued by examiners, are appealable to the Commission. Serious delay 
or disruption has not occurred under this revised procedure. 

During the three fiscal years under study, the FCC's rules gov- 
erning appeals from an examiner's interlocutory rulings provided 
that "[a]ny party to a hearing proceeding may file an appeal from an 
adverse ruling . . . [to] the Review Board. "° Review Board decisions 
were appealable to the Commission under the same standard. The 
only formal restriction imposed on interlocutory appeals appeared 
in a Commission note (appended to the rules) urging parties to defer 
appeals unless the ruling "is fundamental and affects the conduct of 
the entire case."^ Consequently, the failure to appeal would delay 
but not waive any objections except those objections that become 
moot if not pressed immediately. The rules made no provision for 
postponing the hearing pending the interlocutory appeal, although 
they did allow the presiding officer and the Review Board discretion 
to stay an orderJ As a matter of practice, examiners generally have 
not postponed hearings pending an interlocutory appeal. However, 
this result may have followed from the fact that discovery or post- 
hearing questions constituted a significant portion of the FCC's inter- 
locutory appeals and the hearings were not then in session. The FCC 
Review Board's time has been consumed more by direct petitions on 
interlocutory matters outside the examiners' province than by ap- 
peals from examiner rulings. "[P]etitions to amend, modify, enlarge, 
or delete the issues in cases of adjudications" are for the Review 
Board and not the examiner.^ 

The statistics on interlocutory appeals relating to the scope or 
conduct of adjudicatory hearings at the FCC during the three fiscal 
years studied are shown in Table I. These statistics require some ex- 
planation. On the one hand, the number of interlocutory rulings by 
examiners shown in Table I is inflated because it includes routine 
matters that are never appealed (e.g., the Chief Examiner's designa- 

5. 47 C.F.R. § 1.301(a) (1970), as amended, FCC Report & Order 70-1193 (1970), 47 
C.F.R. § 1.301(a) (1971). 

6. 47 C.F.R. § 1.301. Note (1970), as amended, FCC Report & Order 70-1193, 35 Fed. 
Reg. 17333 (1970). 

7. 47 C.F.R. § 1.301(e) (1970). as amended. FCC Report & Order 70-1193 (1970), 47 
C.F.R. § 1.301(c) (1971). Cf. 47 C.F.R. § 1.115(h) (1971). 

8. 47 C.F.R. § 1.291(a)(2) (1971). The Board acts on numerous other interlocutory 
matters (e.g., petitions to extend time, to reconsider, to correct the transcript) unre- 
lated to the conduct of the adjudicatory hearing before the examiner. Id. These rulings 
are not considered here. 




















Interlocutory Appeals in FCC Hearings 

Fiscal Year 
1968 1969 1970 

Interlocutory rulings by examiners 1856 1690 1914 

Interlocutory appeals from examiner rulings 

(to Review Board) 
Direct interlocutory petitions (to Review Board) 
Interlocutory appeals to FCC 
Adjudications disposed of by hearing 
Adjudications pending at end of fiscal year 
Adjudications docketed 

tion of examioers). On the other hand, many controversial inter- 
locutory rulings issued by an examiner are not reflected because the 
ruling was not formalized or no interim appeal was sought (e.g., 
rulings to admit or reject evidence during a hearing). Moreover, it 
is not true that every hearing involves at least one interlocutory inter- 
ruption (as might be concluded from this table), since there often 
is more than one appeal in a proceeding. 

Even when adjusted, the number of direct petitions and inter- 
locutory appeals does not adequately reflect the actual situation. 
Direct petitions, of which there are relatively many, seldom impede 
adjudicatory hearings. Hearings usually are not postponed pending 
the Board's decision, and most petitions (e.g., to add or amend issues 
to be determined) are filed shortly after the case is first assigned to 
the examiner; thus they seldom occasion serious delay. Although 
more apt to cause delay, interlocutory appeals from examiner rulings 
do not appear excessive. Of the 48 appeals filed in fiscal 1970, the 
Review Board reversed the examiner in 20% of the cases. The 
benefits of these appeals appear substantial.^** The parties are assured 
a fairer hearing — one tried in accordance with the Commission's 
rules and policies. Moreover, the cost of these appeals does not seem 
very high. In over 90% of the FCC's hearings, no delay or expense 
is incurred because no interlocutory appeal is filed.^^ It has not been 

9. These statistics were supplied by the Review Board and the Chief Hearing 
Examiner. We have excluded — even from "direct interlocutory petitions" — requests 
made directly to the Review Board that do not directly affect the adjudication (e.g., 
petitions for extensions of time on appeal to the Review Board, petitions to reopen 
the record, and petitions to reconsider the Board's decision). 

10. See, e.g., Harrison Radio, Inc., 22 F.C.C.2d 283 (1970); Citizens Cable Co., 
19 F.C.C.2d 907 (1969); East St. Louis Broadcasting Co., 9 F.C.C.2d 212 (1967). 

11. In connection with the November 1970 rule change, the chairman of the FCC 
Review Board made a detailed analysis of interlocutory appeals during the second 
half of fiscal 1970. While 22 appeals were processed by the Board, they involved only 
15 proceedings. During this time approximately 200 docket proceedings were assigned 
to the FCC's examiners. Thus, less than 8% of all adjudications assigned to examiners 
during this period were subject to interlocutory interference. 


suggested that unsuccessful appeals are frivolous or undesirable; in- 
deed, an affirmation of the examiner's decision may enhance his 
standing and performance. The delay resulting from an unsuccessful 
interlocutory appeal is unlikely to be significant since the hearing 
generally is not postponed and the Review Board usually decides 
the question within 60 days.^^ Moreover, as the statistics demonstrate, 
the Commission seldom interferes with the Board's disposition of 
interlocutory questions. ^^ 

Despite this successful record, the FCC did amend its rules of 
practice to restrict interlocutory review of examiner rulings. Except 
for sensitive orders rejecting claims of privilege, making confidential 
records available, or terminating a person's right to participate in a 
hearing, interlocutory appeals can now be heard by the Review 
Board only if allowed by the examiner.^^ In the awkward phrasing 
of the FCC's rule, the examiner shall permit an appeal if it "presents 
an important question of law or policy as to which there is sub- 
stantial ground for difference of opinion and . . . the ruling is such 
that error would be likely to require remand should the appeal be 
deferred and raised as an exception. "^^ Questions subject to discre- 
tionary review can still be postponed and raised on a party's appeal 
from the examiner's initial decision. ^^ However, if the appeal exists 
as a matter of right, the issue is waived unless pressed immediately.^'^ 

This rule amendment is curious in view of the FCC's experience 
with interlocutory review. If any problem existed, it was with dis- 
covery appeals, which occasionally seemed unworthy of review,^^ and 
with the procedure that allowed the parties to by-pass the examiner 
on many questions. The new rule, however, goes beyond appeals 
from discovery rulings, and it does not require that all interlocutory 
issues be considered first by the examiner. The FCC justifies the 
amendment on the grounds that it expedites hearings "by strength- 
ening the position of the presiding officer, by cutting down on hear- 
ing delays occasioned by consideration of appeals which should be 
deferred pending action on the merits, and by freeing the Review 

12. The average time between the filing of an interlocutory appeal and the Review 
Board's decision during 1968 was 54 days, during 1969, 54.5 days, and during 1970, 58.5 

13. During the eight-year history of the Review Board (Aug. 1, 1962-June 30, 1970), 
the FCC granted only 36 petitions for review — and this figure includes several matters 
beyond the scope of what we have included in interlocutory review. 

14. 47 C.F.R. § 1.301 (1971). 

15. 47 C.F.R. § 1.301(b) (1971). 

16. 47 C.F.R. § 1.301(b)(1) (1971). 

17. 47 CJ.R. § 1.301(a) (1971). 

18. E.g.. Chronicle Broadcasting Co., 23 F.C.C.2d 162 (1970). 


Board to spend its resources" elsewhere.^® Staff proponents readily 
concede that the arguments for eliminating needless hearing delays 
and for reallocating Review Board resources are make-weights — as 
is indicated by the relatively trouble-free operation of the open ap- 
peal procedure. The main justification, then, for surrendering the 
benefits of Board supervision (at least when the examiner refuses 
the appeal request) and restricting appeals much in the manner of 
the federal courts is to enhance the position, power, and prestige 
of the Commission's hearing officers. That there are some grounds 
for this rationale cannot be gainsaid. Although such evaluations are 
necessarily subjective, most observers concede that, as the FCC has 
granted additional authority to its examiners, their self-respect, pro- 
fessional stature, and performance have improved. Whether the 
power to deny interlocutory appeals from most evidentiary and pro- 
cedural rulings will further enhance the examiners' status is less 
clear. Currently, examiners are upheld in 80% of all interlocutory 
appeals.^" The effect of such approbation would appear to be sub- 
stantial. Indeed, it is not clear that examiners would relinquish such 
approval by denying interlocutory requests. It is possible under the 
new discretionary review procedure for the examiner to certify only 
those rulings that he believes (and probably knows) will be upheld 
and to deny permission to appeal from questionable rulings that 
might be reversed. 

On the other hand, the record does not justify any assumption 
that examiners will use their new powers, either consciously or un- 
consciously, in so deceptive a manner. Experience with the new rule 
will ultimately provide an answer. For the present, an educated 
guess suggests that the impact of the new rule will be minimal, 
especially since the parties retain the right to appeal or to by-pass 
the examiner on the most important interlocutory questions.^i This 
point was underscored by the Federal Communications Bar, which 
reluctantly supported the rule change after it was modified to c^.- 
pand the automatic review provisions for claims of privilege, because 
"in extraordinary circumstances involving obvious and serious error, 
parties could petition the Commission for waiver of thr [sic] 
rule . . . ."^2 

19. FCC Report & Order 70-1193, f 6, 35 Fed. Reg. 17333 (1970). 

20. During fiscal 1970, the Review Board reversed examiners on 9 out of 48 inter- 
locutory appeals. 

21. See note 14 supra and accompanying text. 

22. FCC Preliminary Report & Order 3 (submitted Oct. 7, 1970), on file with the 
Michigan Law Review. This justification, interestingly enough, was deleted from the 


Despite this expansion of the examiner's authority, the FCC's 
rules are still overly restrictive. On the one hand, the examiner is 
not authorized to rule on all interlocutory questions once the matter 
is assigned to him despite the fact that he is most familiar with the 
case. His views should be obtained before the Review Board acts on 
the appeal. Moreover, a ruling by the examiner may avoid unneces- 
sary appeals to the Review Board. On the other hand, if applied 
strictly, the new standard for determining whether an interlocutory 
appeal should be allowed may be unfair. The standard requires a 
three-step test: the issue must (a) involve an important question in 
the mind of the examiner, (b) be unresolved under Commission prec- 
edent, and (c) result in prejudicial error if incorrectly decided.'^^ 
The standard seemingly excludes equally important questions de- 
serving Review Board consideration. For example, consider a ques- 
tion that will become moot by the time the Review Board hearing is 
held (and thus remand is unlikely). Or consider rulings that, while 
not rising to the level of prejudicial error, are of substantial impor- 
tance to the aggrieved party. We suspect that examiners are likely 
to certify these and other questions despite the rule language. If our 
estimate is accurate, practical accommodations would not forestall 
the rewriting of these awkward rules. 

2. Federal Power Commission 

Viewed superficially. Federal Power Commission (FPC) hearings 
appear similar to those of the FCC. Thus, it seems surprising that 
substantially fewer interlocutory appeals are filed at the FPC. In 
both agencies, hearings involve either license applications or rate 
requests. Each agency operates with approximately 15 examiners, 
whose decisions often determine the future positions of the par- 
ticipating businesses. Yet the FPC holds fewer than half the number 
of hearings the FCC does.^^ And the FPC seldom allows interlocutory 
appeals from examiner rulings, whereas, until last November, the 
FCC allowed appeals as a matter of right. 

The difference is not attributable to the personnel or to the rules 
of each agency, even though they differ. It lies, rather, in their basic 
work. Rate requests are the most frequently contested type of FPC 

FCC's final report even though the Commission discussed the Federal Communications 
Bar Association Committee's support in its order. 35 Fed. Reg. 17332-33 (1970). 

23. 47 C.F.R. § 1.301(b) (1971). 

24. See Subcomm. on Administrative Practice & Proc, senate Comm. on the 
Judiciary, 88th Cong., 2d Sess., Statistical Data Related to Administrative Proceed- 
ings 27-30, 85-38 (Comm. Print 1964) (Part II of the "Statistical Greenbook"). 


hearings — at least when measured by hearing days. These hearings 
tend to be complex, extended affairs concentrating on the economic 
condition of the parties and the industry and usually involve tech- 
nical evidence. Little attention is paid to the personal histories of 
the company officers, and issues of credibility are rare. FPC hearings 
frequently involve expert evaluation, which makes it difficult for 
a reviewing authority to obtain an adequate grasp of the context in 
which the examiner issued his ruling without inordinate study of 
the record. Discovery is not significant in FPC practice and individual 
rulings are less likely to require remand or retrial of the entire case. 
In essence, the issues and evidence at FPC hearings discourage inter- 
locutory review.^'^ 

Even though FPC hearings are not subject to significant inter- 
locutory appeal and the Commission keeps no statistics on interloc- 
utory review, its rules are worth noting. Interlocutory appeals to the 
Commission are authorized only "in extraordinary circumstances 
where prompt decision by the Commission is necessary to prevent 
detriment to the public interest."^^ The examiner determines whether 
"extraordinary circumstances" exist.^^ Certification by the examiner 
neither assures the appealing party that review will be granted nor 
substantially delays the proceeding since the interlocutory petition 
"shall be deemed to have been denied" unless the FPC acts upon it 
within 30 days.^^ The FPC's protest rule, which allows anyone to 
file a protest "to alert the Commission and the parties to a proceeding 
of the fact and nature of the protestant's objection,"^^ can be used to 
seek direct interlocutory relief from the Commission if an examiner 

25. FCC hearings, on the contrary, usually present a different situation. Except 
for common carrier rate hearings (which are basically indistinguishable from Federal 
Power Commission [hereinafter FPC] rate requests), most contested FCC hearings in- 
volve competing applications for a broadcast license, even in renewal or revocation 
hearings. Only occasional attention is given to industry conditions or economic 
evidence in broadcast hearings, other than consideration of the soundness of the 
applicant's financial condition. Instead, the hearings concentrate on the applicant's 
past record or prospect and frequently include a review of individual actions over 
several years. That is, the evidence presented in most FCC hearings is less complex 
and voluminous than that adduced before FPC examiners. 

26. 18 C.F.R. § 1.28(a) (1971). Until November 1968, this strict limitation was not 
applicable to appeals from an examiner's ruling at a prehearing conference. FPC Order 
141, 12 Fed. Reg. 8480 (1947), as amended, FPC Order 217, 24 Fed. Reg. 9473 (1959). 
The FPC abolished this distinction, however, so that all interlocutory appeals are now 
subject to Rule 1.28(a) without regard to whether the examiner's ruling was made 
during the hearing or at a prehearing conference. FPC Order 373, 33 Fed. Reg. 17174 

27. 18 C.F.R. § 158(a) (1971). 

28. 18 C.F.R. 9 1.28(c) (1971). 

29. 18 C.F.R. S 1.10(b) (1971). 

493-361 O - 73 - 7 


unreasonably refuses to certify a question. Direct appeals, however, 
are exceedingly rare. 

While FPC hearings may not provoke as many interlocutory ques- 
tions as do the proceedings of other agencies, staff attorneys and prac- 
titioners concede that questions of discovery or evidence can raise 
serious objections. The practice, however, is to rely upon the appeals 
from the examiner's final decision to present any objections that 
might have been raised on interlocutory review. The FPC Bar, which 
assisted in drafting the FPC rules, is a relatively small group; 
thus most practitioners appearing before an examiner have, or expect 
to have, other cases before the Commission. Consequently, it is diffi- 
cult to penetrate the resulting consensus toward postponing appeals. 
It appeared to us that FPC examiners and the FPC Bar have reached 
a practical (if unacknowledged) accommodation on the procedures 
for deciding interlocutory questions. 

3. Civil Aeronautics Board 

Civil Aeronautics Board (CAB) hearings fall primarily into two 
areas, licensing (route applications) and rate-making (tariff filings). 
Board proceedings are often lengthy and complex. Economic evi- 
dence is predominant and voluminous. Hence, CAB hearings parallel 
FPC proceedings, with the exception that the topics differ. The 
former relate solely to air transportation, while the latter regulate 
the supply of electric and gas energy. It is not surprising, therefore, 
that the CAB's procedure for interlocutory review of examiner rul- 
ings is similar to the FPC's approach. The only significant difference 
between the two is that, although the FPC still hears an occasional 
appeal, the CAB, as a matter of practice, hears none. 

While the CAB's rules continue to authorize interlocutory re- 
view, they do so only "in extraordinary circumstances and with the 
consent of the examiner. "^^ Even then the appeal will be disallowed 
unless the examiner finds that interlocutory review "is necessary to 
prevent substantial detriment to the public interest or undue prej- 
udice to any party. "^* Not surprisingly, examiners do not find that 
their challenged rulings will cause substantial detriment to the 
public or will unduly prejudice one of the parties.^^ Even if the 
examiners were to become more critical of their own rulings, the 

30. 14 C.F.R. § 302.18(f) (1971). 

31. 14 C.F.R. § 302.18(f) (1971). 

32. The examiner's authority to set the time for filing interlocutory appeal hrieis 
(when he consents to a review) also reflects his position in the CAB. 14 C.F.R. § 302.18(f) 


CAB has made it clear that interlocutory review is exceptional and 
is merited only when the examiner agrees that his ruling should be 
reviewed and finds that the appeal is necessary.^^ As the Board ad- 
monished in Southwestern Area Local-Service Case,^^ "Rule 18(f) is 
designed to discourage and avoid interlocutory appeals except in 
extraordinary circumstances and in strict conformity to its pro- 

The CAB maintains no index of interlocutory appeals. If a party 
requests an interlocutory review, that request is made orally to the 
examiner and will be denied without a written order; however, the 
request is preserved in the hearing record. The CAB's examiners and 
staff, as well as the private bar, generally assert that objections to 
interlocutory rulings are adequately considered in the review of the 
examiner's recommended decision by the Board. Private prac- 
titioners, however, confidentially note that they are subject to con- 
siderable restraint in seeking interlocutory review. Because rela- 
tively few attorneys practice before the CAB, their relationship with 
the examiners must be a continuing one. Route determinations are 
sophisticated questions, in the resolution of which the examiner 
exercises wide discretion. As a result, private attorneys practicing be- 
fore the CAB evidence a reluctance to press procedural objections 
in the face of the examiners' expressed dislike for interlocutory re- 
view. On the other hand, these same practitioners concede that dis- 
covery is not a significant problem in CAB hearings.^^ Because of 
extensive reporting requirements, information is readily available, 
and discovery is normally granted if additional information is needed 
from other parties or from the Board's files. Thus, many of the 
critical procedural rulings often challenged by interlocutory appeal 
in other agencies are simply not present in CAB hearings. The situa- 
tion, in other words, parallels our view of FPC practices. 

4. Securities and Exchange Commission 

Although the Securities and Exchange Commission's (SEC) atten- 
tion focuses primarily on the regulation by informal means of the 
issuance and trading of securities, two types of formal administrative 

33. In addition to imposing strict tests for reviewability, the rules provide that 
the interlocutory review shall not include oral argument unless the CAB so directs, 
and that the review does not automatically postpone the hearing. 14 C.F.R. §§ 302.18(f), 
(g) (1971). 

34. 32 C.A.B. 1375 (1961). 

35. 32 C.A.B. at 1375. 

36. Maurer, Use of Discovery Procedures Before the C.A.B., 18 Ad. L. Rev. 157 


hearings do arise under the SEC statutes. The first resembles a licens- 
ing procedure and involves an application by a person otherwise 
subject to this Commission's jurisdiction for exemption from (or 
approval pursuant to) specific regulatory requirements. Typical ex- 
amples are applications under section 17(b) of the Investment Com- 
pany Act of 1940^^ for permission to effect transactions between 
"certain affiliated persons,"^^ or for declarations concerning the issu- 
ance of securities under section 7 of the Public Utility Holding 
Company Act of 1935.39 

The second type of proceeding before the SEC is a complaint 
hearing instituted by the Commission's allegation that the respon- 
dent failed to abide by one of the securities acts or regulations. The 
most frequent of these involve disciplinary action against a broker- 
dealer and associated individuals under sections 15(b)(5) and (7) of 
the Securities Exchange Act of 1934.^° Another example of this type 
of SEC hearing is a stop-order proceeding under the Securities Act 
of 1933.^^ The licensing procedure is frequently adversary in nature, 
but the complaint proceeding more closely resembles a judicial trial. 
Interlocutory review of examiner rulings is occasionally sought in each. 

The history of the SEC hearing examiner's position in the con- 
duct of adjudicatory proceedings — and in the making of interlocu- 
tory rulings — reflects the increasing authority given presiding officers 
in most federal agencies as well as the increasing delegation of 
authority to employee boards or individuals below the commission 
level. Since the SEC's experience has been successful, and since it 
supports the experience of other well-managed agencies, we have 
spelled out the procedural changes in some detail with the design 
that the SEC's record might encourage other agencies to follow its 

Initially, the examiner's authority at the SEC was limited." 
Parties frequently sought an interlocutory ruling from the Commis- 
sion because the question was beyond the scope of the examiner's 
power to rule. Then, in I960, the SEC expanded the hearing officer's 
authority to rule on motions made during the course of a hearing. 
Motions were to be addressed to the examiner, not the Commission, 

37. 15 U.S.C. § 80-al7(b) (1964). 

38. 15 U.S.C. § 80-al7 (1964). 

89. 15 U.S.C. § 79g (1964). Also included among the licensing type hearings would 
be applications for the extension of unlisted trading privileges under S 12(f) of the 
Securities Exchange Act of 1934, 15 U.S.C. § 78/(f) (1954). 

40. 15 U.S.C. §§ 78o(b)(5), (7) (1964). 

41. 15 U.S.C. §§ 77h(b). (d) (1964). 

42. See generally 3 L. Loss, Secihuties Regulation 1910-11 (2d ed. 1961). 


and he was to rule upon them.*^ when a party excepted to a ruling 
by the examiner during the hearing, the examiner was to certify 
the challenge as requested to the Commission if he found "(1) that 
there [was] at issue, a privilege not to answer questions posed; or 
(2) that a subsequent reversal of the ruling by the Commission would 
unduly delay or prolong the proceeding or cause undue inconven- 
ience to the parties, taking into consideration the probability of such 
reversal."** If the examiner determined that the test for certification 
was not met, a party could apply to the Commission for review, or 
the Commission could direct, on its own motion, that the matter be 
submitted to it. In any event, the hearing was to continue unless 
the examiner ordered otherwise.*^ 

The rules were further amended in 1964 to authorize hearing 
officers to consider and rule on not only all motions made during 
the course of the hearing but also most prehearing motions.*^ More 
importantly, the Commission gave greater effect to interlocutory 
rulings by examiners by prescribing more restrictive conditions for 
appeals.*^ Objections generally have to be made first to the hearing 
examiner. In addition, the examiner is not to certify a ruling for 
interlocutory review unless (a) a party so requests and (b) the exam- 
iner finds that a subsequent reversal of this ruling would cause 
"unusual delay or expense" or that the ruling would compel dis- 
closure of confidential SEC files or testimony from Commission per- 
sonnel.*^ Furthermore, the Director of the Office of Opinions and 
Review (the SEC's counterpart of the Review Boards utilized by the 
ICC and FCC) was delegated authority to affirm interlocutory rulings 
by the examiner.*^ Only the SEC can reverse an examiner's inter- 
locutory ruling, but it does not receive the matter until the Director 
indicates that he will not affirm the examiner. There are a few items 
beyond the examiner's authority that must be presented directly to 

43. SEC Rule Xll(a), 25 Fed. Reg. 6731-32 (1960), as amended, 17 C.F.R. § 201.12 

44. Id. 

45. Id. 

46. Securities Act Release No. 33-4674 (March 20. 1964), 17 C.F.R. § 201.12(a) (1971). 

47. 17 C.F.R. § 201.12(a) (1971). 

48. 17 C.F.R. § 201.12(a) (1971). The overriding standard is established in the first 
sentence of the Commission's current rules: "The Commission will not review a ruling 
of the hearing officer prior to its consideration of the entire proceeding in the absence 
of extraordinary circumstances." Id. 

49. 17 C.F.R. §§ 200.30-6(a)(l)(i)-(ii) (1971), pursuant to Act of Aug. 20. 1962. Pub. 
L. No. 87-592. §§ 1-2. 76 Stat. 394-95, codified at 15 U.S.C. §§ 78d-l, d-2 (1964). See 
S. Rep. No. 776. 87th Cong:, 1st Sess. (1961); H.R. Rep. No. 2045. 87th Cong.. 2d Sess. 
(1962). If he finds it appropriate, the Director may submit a case to the Commission 
even though he would affirm the examiner's ruling. 


the Commission (e.g., applications to intervene and requests to add or 
delete issues). "^^ In line with these developments, the SEC has liberal- 
ized its discovery rules."*^ 

The statistics on SEC hearings and interlocutory appeals are 
shown in Table II. As Table II indicates, despite a substantial case- 
load, there are few interlocutory appeals in SEC proceedings. 

Interlocutory Appeals in SEC Hearings 

Fiscal Year 
1968 1969 1970 

Interlocutory appeals from examiner rulings 
Direct interlocutory action (to SEC only) 
Adjudications pending (workload) 
Adjudications disposed of 

without hearing 

after hearing 
Adjudications docketed 

Because the number of interlocutory appeals was so small and the 
SEC's records were carefully indexed, we were able to review the 
record in each case. The pertinent summary of the records in the 
16 cases in which interlocutory review of hearing examiner rulings 
was pursued appears in Table III. The interval between the filing 
by the parties of their request for certification or petition for review 

Summary of Records in Interlocutory Appeals 



















Nature of examinei- ruling 







Examiner ruling on review 



Not certified 


Ruling of review authority 

Director, O & R 









• Several interlocutory a 
the totals vary. 

ppeals involved 

more than one ruling or 

issue; consequently. 

50. 17 C.F.R. §§ 201.11, .12(b) (1971). 

51. See Frankhauser & Bellman, The Right to Information in the Administrative 
Process: A Look at the Securities and Exchange Commission, 18 Ad. L. Rev. 101 (1969). 


and the disposition of the matter by the Commission or by the Di- 
rector averaged 25 days, with a fourth of this time consumed by 
briefing and oral argument. In every instance, the hearing delay 
resulting from interlocutory review was inconsequential, for in none 
of the proceedings in which an appeal was prosecuted during the 
hearing was the trial postponed. It is less clear, however, whether 
the prehearing appeals affected the time schedule. Interlocutory 
appeals are usually sought by respondents. The Commission and the 
Director have not been reluctant to reverse the examiners (although 
the examiners were upheld in a majority of appeals). ^^ However, in 
general, parties have been deterred from pressing interlocutory ap- 
peals. The picture with respect to direct interlocutory actions to the 
Commission during these three fiscal years (1968-1970) is similar to 
that of interlocutory appeals. None of the actions — which involved 
questions beyond the examiner's authority and, therefore, had not 
been ruled upon by him — directly contributed to delay. Most were 
prehearing motions (usually to alter the scope of the hearing) and the 
others (procedural complaints or third-party attempts to intervene) 
did not cause the hearing to be postponed. ^^ On the other hand, it 
seems likely that hearings might have been scheduled earlier had no 
interlocutory appeal been taken or had the issue been ruled upon 
by the examiner. 

The sum and substance of this analysis, therefore, is that inter- 
locutory review of examiner rulings has been handled sensibly and 
expeditiously by the SEC. At first glance, it might seem inconsistent 
to require examiner certification before an interlocutory review can 
be pressed, and then to allow appeals to be presented when the 
examiner finds that the requirements of certification are not met; 
but the deterrent impact of the examiner's decision not to certify 
must be noted. It may well be concluded from the relatively few ap- 
peals (in comparison with the number of administrative proceedings 
before examiners) that an SEC examiner's refusal to certify discour- 
ages most appeals. The Commission's delegation of authority to the 
Director of Opinions and Review to affirm, but not to reverse, the 
examiners' rulings encourages consistent, well-reasoned decisions. 
The rules are still vague on precisely what matters are beyond the 
examiner's authority and must be presented directly to the Commis- 
sion.^^ There does not appear to be any justification for retention of 

52. See Table III supra. 

53. However, one quarter (four) of the appeals were filed in one proceeding, in 
which an applicant sought approval of its acquisition of an electric utility under the 
Public Utility Holding Company Act. See American Elec. Power Co., SEC Docket 3-1476. 

54. 17 C.F.R. §§ 201.11(e), .12(b) (1971). 


this separate procedure, which, at one time, governed all interloc- 
utory appeals. In other words, we think that the Commission's pro- 
cedures have operated so successfully that they should be pursued 
to their next logical conclusion and that all questions should be 
ruled upon by the examiner, certified or denied certification by the 
examiner, and decided on interlocutory appeal by the Director. 

5. Federal Trade Commission 

"Problems of delay have vexed the FTC ever since it was estab- 
lished, and some of the most notorious examples of protracted admin- 
istrative proceedings have occurred in that agency."^"* Even with a 
declining caseload, the Federal Trade Commission's (FTC) ponder- 
ous investigative and adjudicative proceedings "continue to produce 
decisions based on stale and unreliable evidence and to undermine 
effective enforcement."^^ This harsh judgment by the American Bar 
Association's FTC Study Commission is not a new one. The FTC's 
internal operations, including its hearing procedures, have been 
thoroughly analyzed and castigated by authorities almost since the 
agency's birth." It is surprising then, if our recollection is accurate, 
that except for former Commissioner Elman's critique, none of these 
studies examine the FTC's promiscuous interlocutory practice or 
suggest that it contributes substantially to adjudicative delay.^^ 

FTC adjudications are complaint cases; that is, the hearing is 
held to determine whether a charged respondent has violated federal 
laws proscribing restraints of trade, deceptive practices, or misleading 
labels. ^^ Although the Commission has authority in many cases to 

55. ABA CoMM. To Study the FTC, Report 28 (1969) [hereinafter ABA Report]. 

56. Id. at 32. See, e.g., Columbia Broadcasting Sys., Inc. v. FTC, 414 F.2d 974 (7th 
Cir. 1969), cert, denied. 397 U.S. 907 (1970). 

57. See, e.g.. ABA Report, supra note 55; T. Blaisdell, The FTC: An Experiment 
IN THE Control of Business (1924); E. Cox, R. Fellmeth & J. Schulz, The Nadar Re- 
port ON THE Federal Trade Commission (1969); Commn. on Executive Org., Task Force 
on Regulatory Commissions app. N (1949); G. Henderson, The Federal Trade 
Commission: A Study in Administrative Law and Procedure (1924); Robert Heller 
& Associates, Inc., FTC Management Survey Report (1954); Senate Comm. on the 
Judiciary, 86th Cong., 2d Sess., Landis Report on the Regulatory Agencies to the 
President-elect (Comm. Print 1960); U.S. Civil Serv. Commn., Evaluation of Person- 
nel Management, Federal Trade Commission (1965); Auerbach, The Federal Trade 
Commission: Internal Organization and Procedure, 48 Minn. L. Rev. 383 (1964); Elman. 
Administrative Reform: The Federal Trade Commission, in Senate Comm. on the 
Judiciary, 91st Cong., 1st Sess., Responses to Questionnaire on Citizen Involvement 
and Responsive Decision-Making 122 (Comm. Print 1969); Elman, A Modest Proposal 
for Radical Reform, 56 A.B.A.J. 1045 (1970). 

58. See authorities cited in noie 57 supra. 

59. For a current list of the statutes that the FTC has been assigned to enforce, 
see ABA Report, supra note 55, at 6-7. 


seek preliminary injunctive relief, it seldom does so.^° Consequently, 
a challenged practice is not directly affected by the adjudicative 
hearing until a final order is issued and implemented; and then the 
sanction consists of only a prescriptive cease-and-desist order. In 
other words, respondents have strong incentives to delay the hearing. 
At one time, the FTC's rules placed no restriction on interloc- 
utory appeals from examiner rulings.®^ As examiners were delegated 
greater authority, the right to appeal was limited — at least in theory. 
For the past few years, interlocutory review has been at the Commis- 
sion's discretion; the examiner has had no control over it. A cumber- 
some, two-step procedure must be invoked.®^ First, within five days 
after notice of the examiner's interlocutory ruling, the complaining 
party must file a request of not more than ten pages for permission 
to appeal.*^ "Permission will not be granted except upon a showing 
that the ruling complained of involves substantial rights and will 
materially affect the final decision, and that a determination of its 
correctness before conclusion of the hearing is essential to serve the 
interests of justice."^* Although the rules are silent in this regard, 
responsive briefs opposing requests to appeal may be filed.^° Once 
permission is granted, the second step becomes the actual appeal. 
The appellants are directed to file briefs of not over 30 pages within 
five days after permission has been granted; the appellees, within five 
days after the appeal brief is served.®^ On occasion, the entire Com- 
mission has heard oral argument during this second stage, even 
though the rules again make no provision for it.^^ The rules do 
provide that "[t]he appeal shall not operate to suspend the hearings 
unless otherwise ordered by the hearing examiner or the Commis- 

60. In fact, the FTC recently used this power for the first time in eight years. 
Medi-Hair Intl., 3 CCH Trade Reg. Rep. f 19,442 (FTC 1971). See BNA, ATRR No. 
500, at A-13 (Feb. 16. 1971). 

61. See 16 C.F.R. § 3.20(b)(1) (1960). 

62. 16 C.F.R. § S.23 (1971). 

63. 16 C.F.R. § 3.23(a) (1971). 

64. 16 C.F.R. § 3.23(a) (1971). This language was adopted in fiscal 1968. 33 Fed. 
Reg. 7032 (1968). The previous test limited permission to appeal to a showing of 
"extraordinary circumstances where an immediate decision by the Commission is clearly 
necessary to prevent detriment to the public interest." 16 C.F.R. § 3.20(a) (1967). The 
rule change apparently was designed to articulate the factors previously applied under 
the public interest test. 

65. See, e.g., Koppers Co., Inc., [1967-1970 Transfer Binder] Trade Reg. Rep. 
f 16,879, at 21.023 (FTC 1969). 

66. 16 C.F.R. § 3.23(b) (1971). 

67. See, e.g.. Suburban Propane Gas Corp., [1967-1970 Transfer Binder] Trade Reg. 
Rep. f 17,965, at 20.336 (FTC 1967). 


sion."^^ The routine practice, however, is for the examiner to post- 
pone the proceeding pending interlocutory review. 

There are two exceptions to this discretionary review system. 
First, the FTC's permission is not required to appeal rulings on 
requests for admissions or rulings on compulsory processes.^^ On the 
other hand, these appeals will be "entertained" by the FTC only 
when the aggrieved party makes the "showing" required for other 
interlocutory appeals.^" Apparently the first step — that is, the peti- 
tion-to-appeal stage — is dispensed with and the decision whether to 
entertain the appeal and whether to grant or deny it is accomplished 
on reading the appeal briefs. When this exception was brought to 
the attention of staff attorneys and FTC practitioners, they vaguely 
recalled it but conceded that they relied upon the two-step approach 
in making such appeals.'^^ In other words, the Commission's experi- 
ence here is at variance with its rules. The second exception involves 
examiner orders to disclose confidential information within the Com- 
mission's files or an examiner's suspension of an attorney.'^ Inter- 
locutory review of these sensitive rulings is automatically allowed; 
in fact, the decision to release confidential FTC files may be reviewed 
on the Commission's own motion if no party complains."^^ 

These rules were adopted to restrict interlocutory appeals. Re- 
view by the FTC is not a right. On the contrary, it is to be granted 
only when a stringent test is met — when failure to review is likely 
to cause greater delay or unnecessary and substantial harm.'^^ More- 
over, the Commission, rather than the parties or the examiner, de- 
termines whether this test is met. Compliance with its rules, therefore, 
would seem simple to assure. 

If ever a gap existed between rule and reality, the FTC proce- 
dures and practices illustrate it. The number of interlocutory ap- 
peals, especially when compared to the number of adjudicative hear- 
ings on the docket, is astonishing. The statistics for three fiscal 
years are shown in Table IV. Once again, however, these sta- 
tistics do not tell the whole story. An interlocutory order issues even 
when no appeal from an examiner's ruling is allowed because the 
Commission must, in every case, rule on the petition to appeal. 

68. 16 C.F.R. § 3.23(b) (1971). 

69. 16 C.F.R. § 3.35(b) (1971). 

70. 16 C.F.R. § 3.35(b) (1971). 

71. See, e.g.. United States Steel Corp., 3 Trade Reg. Rep. % 19,545 (FTC 1971). 

72. 16 C.F.R. §§ 3.36(d)-(e), .42(d) (1971). 

73. 16 C.F.R. § 3.36(e) (1971). 

74. 16 C.F.R. § 3.23(a) (1971). 


Interlocutory Appfals in FTC Hearings 

Interlocutory appeals from examiner rulings 
Adjudications pending (workload) 
Adjudications disposed of by examiners 
Adjudications docketed (complaints issued) 

Fiscal Year 
















These orders are not reflected in Table IV when the petition to 
appeal is granted. The two-step process means that two orders are 
commonly issued when an appeal is allowed. (However, the two 
exceptions permitting appeals as a matter of right result in only one 
FTC order per interlocutory appeal.) Of course, this does not mean 
that all interlocutory orders are equal or that they consume the same 
amount of Commission or hearing-examiner time. 

There are other more significant aspects to these figures. First, 
the FTC's recordkeeping renders all its statistics suspect. A check 
of the listing of interlocutory orders by dates supplied by the Com- 
mission staff revealed several errors. Orders were listed when the 
Commission issued no order in that docket on that date; other orders 
were omitted. These errors could not be corrected since the FTC 
maintains no separate record of interlocutory orders and opinions. 
These errors in themselves, however, probably do not pose a serious 
problem for our study since it does not seem likely that they would 
be weighted in one direction; in fact they probably cancel each 
other. More importantly, the thrust of this study is a qualitative, 
as well as a quantitative, analysis of the Commission's interlocutory 
review practice, so that the particular accuracy of any one number 
is of little significance. Second, and of more serious consequence, is 
the probable substantial overstatement of the number of interloc- 
utory appeals that interfere with adjudicative hearings before an 
examiner. Many appeals involve questions of discovery; hence they 
do not always delay the proceeding substantially. Even more relate 
to post-hearing questions (e.g., requests by the examiner for addi- 
tional time to prepare his initial decision or requests by the parties 
relating to their appeal from the initial decision). These routine re- 
quests invariably involve no delay, are decided by the "motions" 
Commissioner without coming before the full Commission, and 
neither postpone the hearing nor affect the examiner's direction of 
it. Therefore, as a check on these statistics, we made an intensive 

75. These figures were supplied by the Office of General Counsel of the FTC. 
They cannot be reconciled with the FTC's annual reports, however. See, e.g., FTC 
Annual Report 57 (1970). 


Study of all interlocutory appeals decided in the second half of fiscal 
1970. Of the 53 interlocutory appeals decided during this interval, 
40% did not involve interlocutory review of examiner rulings. Since 
this period is probably representative, we think that the number of 
interlocutory appeals for these three fiscal years is closer to 160 
than to the 277 reported. Our analysis, therefore, is based upon this 
discounted figure. 

This downward adjustment of figures representing the FTC's 
interlocutory interference with adjudicative hearings still leaves an 
inordinate number of appeals in comparison with the Commission's 
limited adjudicative caseload. Using fiscal 1970 as a baseline, there 
were 70 (discounted) interlocutory appeals from examiner rulings in 
the 60 cases then pending. Yet these statistics substantially under- 
state the role of interlocutory appeals at the FTC, for of the 60 
pending cases, 22 were disposed of by the examiner during the year 
(and thus were not subject to interlocutory appeal for part of the 
period) and 35 involved newly issued complaints (with no oppor- 
tunity often for either party to have obtained interlocutory relief). 
Consequently, there were 70 appeals in the approximately 35 active 
cases before FTC examiners in fiscal 1970 — an average of two appeals 
per active case. This conclusion is supported by a staff study of inter- 
locutory appeals for fiscal years 1966 to 1969, which determined that 
72% of the 172 active cases in that period had at least one interloc- 
utory appeal or certification interrupting the proceeding and that 
many hearings were subject to multiple interlocutory action.'^^ The 
significance of these figures and the extraordinary scope of FTC 
review of interlocutory rulings is further emphasized when the FTC 
statistics are compared with those supplied by other agencies. 

Because interlocutory appeals are so numerous and so common, 
they cause a significant interruption in FTC adjudications, especially 
since hearings are routinely postponed and pretrial activity delayed 
pending the Commission's decision."^^ We sought to document this 
interference. We discovered that the average delay resulting from 
FTC interlocutory appeals during the last half of fiscal 1970 was 
only 18 days — that is, the FTC's interlocutory order was filed, on 
the average, 18 days after review was first sought. It was found that 
15% of these appeals were decided within a week, and only one re- 
quired more than two months to decide. Thus, individual appeals 
are seldom responsible for delaying the proceeding, although several 

76. Memorandum from Joseph J. Gercke, Chairman of the FTC Administrative 
Proc. & Rules Comm., to FTC, March 25, 1970, on file with the Michigan Law Review. 

77. See, e.g., cases cited in notes 78-80 infra. 


proceedings in which the delay was substantial were encountered.'* 
The delay and unwarranted interference that staff attorneys and 
hearing examiners, as well as most practitioners, complain about is 
due, therefore, to the excessive number of appeals in single cases 
and the cumulative delay that results. For example, one of the 15 
cases with interlocutory appeals decided in the second half of fiscal 
1970 was interrupted by 7 interlocutory orders during that 
period and by a total of 26 interlocutory orders over a li/^ year 
period.'^ The case is not sui generis — over half of the cases inter- 
rupted in this six-month period were subject to 2 or more inter- 
locutory orders.*" 

Perhaps the Commission's frequent interlocutory review would 
be justified if the appeals expedited proceedings by avoiding pre- 
judicial error and ultimate remand, or if the salutary effects of close 
supervision of examiner performance outweighed the costs involved. 
Yet such benefits are not apparent from the record. Although al- 
most one quarter of the interlocutory appeals (7 of 30) decided dur- 
ing the period of January to June 1970 resulted in a reversal of the 
examiner's ruling, few involved supervision of the examiner's con- 
duct of the hearing. Only four granted discovery to respondent (and 
two of these were automatically appealable requests for discoverv 
from FTC personnel). Of the other decisions, two modified the con- 
fidential protection given sensitive materials, and one allowed a 
pleading to be amended. On the other hand, examiners were up- 
held in almost two thirds of the appeals (19 of 30), most of which 
sought additional discovery or reversal of an examiner's refusal to 
dismiss a complaint. These latter appeals were often patently friv- 
olous or dilatory. In other cases the Commission continued its 

78. In Suburban Propane Gas Corp., [1967-1970 Transfer Binder] Trade Reg. Rep. 
f 17,965, at 20,336 (FTC 1967), the FTC required 15 months to decide which party 
had the burden of proof on one critical issue. Because of this and other interlocutory 
appeals, a lapse of almost 3 years occurred between issuance of the complaint and 
the beginning of the hearing — which was ultimately dismissed. More recently, the 
Commission delayed a false advertising hearing for 414 months, only to deny inter- 
locutory review of an examiner's decision rejecting cross-motions for summary decision. 
Union Carbide Corp., FTC Docket 8811 (March 12, 1971) (interlocutory order). Thus, 
even after this inordinate delay, neither the examiners nor the parties were advised 
of the standards that examiners should apply in ruling upon motions for summary 
decision. See also Lehigh Portland Cement Co., 3 Trade Reg. Rep. f 19,455 (FTC 1971) 
(interlocutory order). 

79. Koppers Co., Inc., [1967-1970 Transfer Binder] Trade Reg. Rep. f 16.879, at 
21,023 (FTC 1969). 

80. Koppers Co., Inc., FTC Docket 8804; Diener's, Inc., FTC Docket 8804; OKC 
Corp., FTC Docket 8802; Verranzzano Trading Corp., FTC Docket 8801; American 
Brands, Inc., FTC Docket 8799; Sterling Drug, Inc., FTC Docket 8797; Hollywood Credit 
Clothing Co., FTC Docket 8796; Eastern Detective Academy, Inc., FTC Docket 8793; 
Kennecott Copper Corp., FTC Docket 8765. 


restrictive approach to discovery of information from its files. The 
remaining appeals (4 of 30) involved disputes over housekeeping 
items (e.g., additional time to seek interlocutory relief) or matters 
beyond the examiner's authority (e.g., preliminary injunction in a 
merger proceeding). 

We strongly concur, therefore, with the judgment of all FTC 
examiners, and of most staff or private attorneys, that a rule revision 
severely restricting interlocutory review would be a step toward im- 
proving the operation of FTC hearings. Interlocutory appeals in 
FTC adjudications are today generally unsuccessful; they seldom 
involve particularly important matters when they are allowed. A 
selective right of appeal would furnish adequate protection in par- 
ticularly sensitive areas, and a reduction in the number of the FTC's 
redundant interlocutory opinions would prove no loss. But it must 
be noted that interlocutory appeal procedures themselves are of 
little significance in the whole picture of FTC adjudications. The 
major cause of adjudicative delay at the FTC does not stem from 
the interlocutory procedure, but rather is caused by the Commis- 
sion's unwillingness to open its files for discovery, its uncertainty 
with respect to protection of confidential information made available 
for trial purposes, and its reluctance either to remove incentives 
for delay (i.e., to obtain preliminary injunctive relief) or to punish 
delaying tactics.^^ 

6. National Labor Relations Board 

Most adversary hearings before the National Labor Relations 
Board (NLRB) concern complaint cases involving unfair labor 
practice charges.^- Relief may include reinstatement of an employee 
with back pay (and interest), prohibition of future misconduct, or 
similar action designed to neutralize the impact of past abuses.®^ As 

81. Former FTC Commissioner Elman's trenchant summary is, typically, indicative 
and accurate: "[B]y its penchant for secrecy, its refusal to grant respondents adequate 
discovery, its intrusion in areas better handled by the hearing examiner, and by its 
failure to plan its docket, the [Federal Trade] Commission has vitiated and degraded its 
quasi-judicial power." Elman, Administrative Reform: The Federal Trade Commission, 
supra note 57, at 160. 

82. Representation cases are not included in this study because as a matter of 
practice the parties generally do not seek interlocutory review of examiner rulings. 
Several reasons are offered in explanation: representation hearings are not truly 
adversary; they are investigative; and, most importantly, the regional director's decision 
is only tlie predicate for an election, which may then Ije challenged to the Board. The 
Board's rules, however, do make provision for review of interlocutory rulings by 
examiners in representation cases. 29 C.F.R. § 102.65(c) (1971). 

83. 29 U.S.C. § 160(c) (1964). Although the statute does not provide for interest on 
back pay, cases do in fact allow it. See, e.g., Winn-Dixie Stores, Inc. v. NLRB, 413 F.2d 
1008 (5th Cir. 1969); Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). 


with many agencies, the NLRB maintains no separate record of inter- 
locutory appeals; so our report is necessarily fragmentary. Neverthe- 
less, we believe that from the data we collected a representative 
picture can be presented. 

The NLRB's caseload is heavy. There were, for example, 18,651 
unfair labor practice complaints in fiscal 1969.^^ However, 92% of 
these complaints were disposed of prior to a formal hearing by dis- 
missal, voluntary withdrawal, or settlement of the charge. ^^ In recent 
years, trial examiners have annually issued over 900 initial decisions 
in unfair labor practice controversies; and their workload has ex- 
ceeded 1,400 cases per year.^^ To be sure, the hearings are short, gen- 
erally lasting no more than three or four days, and the amount 
in controversy is usually quite limited; that is, the costs of the 
hearing and the economic stake in each case are small compared 
with those of other agencies {e.g., FCC, FPC, and FTC), although 
the hearing is, of course, important to the particular employee and is 
usually of concern to his employer or union. In addition, there is no 
urge, in most cases, to delay the proceeding. When back pay is in issue 
and interest is to be assessed, there would seem to be some induce- 
ment for expedition on the part of the employer. On the other hand, 
the Board's orders carry no immediate sanction and enforcement is 
secured only by petitioning a federal court of appeals.^'^ Occasionally 
the Board asks a district court, under section 10(j) of the National 
Labor Relations Act,^^ for temporary injunctive relief to stop the 
challenged practice pending a hearing. 

Despite the NLRB's caseload, only an average of approximately 
30 interlocutory appeals from examiner rulings in unfair labor 
practice cases are filed annually — although the number increased to 
45 during the first nine months of 1970.^^ From this information 

84. NLRB Annual Report 1 (1969). 

85. Id. at 4. 

86. Id. at 9-10. 17. 

87. 29 U.S.C. § 160(e) (1964). See Recommendation 10 of the Administrative Con- 
ference of the United States, Judicial Enforcement of Orders of the National Labor 
Relations Board, in Ad. Conf. 1969 Annual Report 41 (1970); Recommendation 18 of 
the Administrative Conference of the United States (1961-1962), S. Doc. No. 24, 88th 
Cong., 1st Sess. 50 (1963). 

88. 29 U.S.C. § 160(j) (1964). See NLRB Annual Report 160-64, 238 (1969). 

89. Information on interlocutory appeals from examiner rulings in unfair labor 
practice cases was obtained by searching the daily log and docket files maintained in 
the Solicitor's OfiBce, the only record on interlocutory appeals kept by the NLRB. 
Since the log begins v^rith January 1, 1968, our information covers only the 2% years 
between that date and the time the record was made available to us. 

The log book, moreover, is not wholly accurate. Before investigating the files we 
counted 21 interlocutory appeals in the 2% year period. On closer examination, it 


one might expect that the Board's rules or practices strictly limit 
the right to seek interlocutory review. In fact, however, they resemble 
the FTC's two-step method. The NLRB rules provide that an 
examiner's interlocutory orders "shall not be appealed directly to 
the Board except by special permission of the Board."^° Permission 
is sought by filing a request with the Board "promptly, in writing, 
and . . . briefly stat[ing] the grounds relied on."^^ Thus, the examiner 
plays no role in determining whether interlocutory review will be 
granted. The rules imply that the Board will first decide whether 
review shall be granted and, once permission is granted, will then 
consider the appeal. 

As a practical matter, the Board's interlocutory appeal procedure 
involves but one step and is handled informally. If interlocutory 
review is sought during the hearing, one of the parties will send 
its request by telegram to the Board. The information available to 
the Board at this stage is scanty; it has only the complaining party's 
request, the examiner's ruling, and occasionally an opposing party's 
reply. The complaint and other papers are often located elsewhere 
since the Board is located in Washington and hearings are held 
throughout the country. The Solicitor's Office advises the Board 
whether, in its opinion, the request should be allowed. Interlocutory 
appeals are decided by a panel of three — not by the entire five- 
member Board. At least one Board member is present when the ap- 
peal is discussed; the other two generally send a representative from 
their legal staff who exercises a proxy vote and later advises his 
Board member of the decision. The Board's decision is reached 
quickly (usually by accepting the Solicitor's advice), and the parties 
are usually advised of the ruling the day after the appeal is received. 
This informal system operates efficiently, as it must if the brief unfair 
labor practice hearing is not to be delayed. Few interlocutory appeals 
cause a hearing to be interrupted, although in our review of the 
record we found two cases that delayed proceedings for several 
months. Only a very few cases are subjected to more than one 
interlocutory appeal. 

We studied the interlocutory appeals to the Board for one 12- 

was clear that many did not involve interlocutory review of examiner rulings. Our 
findings, then, by calendar year, were that the Board heard 32 interlocutory appeals 
from examiner rulings in 1968, 33 in 1969, and 45 during the first 9 months of 1970. 

90. 29 C.F.R. I 102.26 (1971). 

91. 29 C.F.R. S 102.26 (1971). 


month period (calendar year 1969) more intensively. There were 33 
appeals in this period. From the records in these cases, which were 
often incomplete, we collected the data shown in Table V. The delay 

Analysis of Interlocutory Appeals In 1969 

Complaint charged violation by 





Interlocutory appeal sought by 
General Counsel-NLRB 





Board action on interlocutory appeal 





Board action sustained position of 
General Counsel-NLRB 




20* • 

Subject matter of interlocutory appeal 
Evidentiary ruling 





• Three cases involved charges against both employers and unions. 
•• Only 20 of the 33 records contained information on these points. 

occasioned by interlocutory appeals during this 12-month period 
averaged 7 days. This figure, however, is distorted by 2 protracted 
appeals; hence, the usual delay appeared to be less than 2 days. 
The appeals from procedural rulings were disparate and could not 
be otherwise categorized. 

NLRB examiners, staff attorneys, and private practitioners we 
contacted were generally satisfied with the Board's interlocutory ap- 
peal procedure. Proceedings are not inordinately interrupted as a 
consequence of this procedure, yet a safety valve is available. The 
comj>etency and experience of the Solicitor's Office is critical; it is 
ably staffed. The willingness of the Board to rely upon the decision 
of one member and two proxies is considered an essential feature, 
although it seems questionable whether the number of interlocutory 

493-361 O - 73 


appeals supports this assertion and whether this informal delegation 
does not in fact exceed congressional authorization.^^ The signifi- 
cance of interlocutory review is reduced by NLRB rule provisions 
explicitly permitting review of an examiner's interlocutory rulings 
"if exception to the ruling or order is included in the statement of 
exceptions filed with the Board. "^^ The cost of remand and retrial, 
which such procedure might necessitate, is less significant when 
the entire proceeding consumes less than a week of trial time. 
The most important — and most limiting — feature of the Board's in- 
terlocutory appeal practice, however, is the restricted scope of the 
subject matter. Interlocutory questions appealed in the usual manner 
to the Board seldom involve complex or novel questions. Decisions 
are made without briefs and upon a sparse synopsis of the case. Con- 
sequently, the adaptability of the NLRB's procedure to agencies with 
more complex proceedings is questionable. Nevertheless, its consid- 
eration by agencies with substantial caseloads and relatively simple 
hearings seems advisable. 

7. Summary 

This survey of six agencies suggests that interlocutory appeals 
have not, in themselves, substantially contributed to delay of admin- 
istrative proceedings. The possible exception is the FTC where, al- 
though individual appeals are handled expeditiously in most cases, 
the number of appeals is so overwhelming that the cumulative delay 
is substantial. It may be, however, that self-selection has operated to 
minimize the impact of interlocutory appeals within the agencies we 
studied. First, this study concentrated on the independent regulatory 
agencies, whose procedures tend to be the most sophisticated. What 
is true of their interlocutory procedures may not follow in other 
agencies. Second, our study was limited. It sought to measure the 
impact of interlocutory review from the available records, which 
were seldom complete. A true measure of interlocutory appeals 
should not stop with a review of selected representative cases and 
qualitative interviews with agency personnel and practitioners. The 

92. Authority to delegate review functions to an employee board has been granted 
to the ICC (49 U.S.C. § 17 (1964)); to the FCC (47 U.S.C. § 155(d)(1) (1964)); to the 
CAB (49 U.S.C. § 1324 (1964)); to the FTC (Reorg. Plan No. 4 of 1961. 75 Stat. 838, 
following 15 U.S.C. § 41 (1964)); to the Federal Maritime Commn. (46 U.S.C. § 1111 
(1964)); and to the SEC (15 U.S.C. §78d-l (1964)). 

9S. 29 CJ.R. § 102.26 (1971). 


cost of a more extended study, however, did not appear to be worth 
the likely gain. 

Even if the interlocutory appeal procedures of most agencies are 
tolerable, useful recommendations can still be offered. The FCC and 
SEC, whose interlocutory appeal procedures appear sound and sen- 
sible in most respects, frequently deny their examiners authority to 
rule initially on interlocutory questions, even though they are al- 
ready familiar with the issues being raised. These agencies also per- 
mit the parties to reargue interlocutory motions in each case by 
briefs to the review authority, thus permitting unnecessary delay. 
The FPC and CAB have virtually eliminated interlocutory appeals, 
but perhaps at too high a cost to a free adversary exchange. The 
FTC's procedures are overly complex and are apparently ignored 
in actual practice. Despite formally restrictive procedures, interloc- 
utory review by the FTC is almost automatic. The NLRB's informal 
methods do not seem adaptable to agencies with more complex 

On the other hand, the experience of these six agencies indicates 
that they are increasingly delegating to their hearing examiners 
additional authority to decide initially all questions and to control 
(in most cases) the availability of interlocutory review. Consequently, 
fewer matters are being appealed to review authorities during initial 
agency proceedings. When kept within reasonable limits, this devel- 
opment has improved the level of agency hearings. Although there 
are exceptions, it seems clear that this process should be encouraged 
and extended. 

III. The Judicial Experience with 
Interlocutory Review 

The direction of federal court experience with interlocutory 
appeals contrasts with that of the agencies. The tendency in the 
courts has been to broaden rather than narrow the opportunity for 
interlocutory review. However, the independence of federal dis- 
trict judges has never been in doubt, and any change expanding ap- 
pellate review of interlocutory rulings is narrowly curtailed by strict 
standards and by the discretion of both the trial and appellate courts. 

The starting point for understanding the judicial analogue is the 
final judgment rule, which provides that an appeal may be taken 
only from a final decision and not from an interlocutory ruling.^^ 

94. E.g., 6 Moore's Federal Practice 1-292 (2d ed. 1966); C. Wright, Federal 


This rule not only seeks to prohibit interim appeals that a final 
decision may make moot, but also reflects a basic decision regarding 
the proper relationship between trial and appellate courts. The trial 
judge is independent and most of his decisions are not subject to 
check and reconsideration.^^ "Appeal gives the upper court a power 
to review, not one of intervention."^* 

The final judgment rule has always been subject to exceptions. 
On the one hand, there are the prerogative writs — prohibition and 
mandamus.^^ These writs are designed primarily to control a trial 
court's abuse of its jurisdiction.®^ On the other hand, there are sev- 
eral statutory exceptions that authorize an immediate challenge to 
"orders of serious, perhaps irreparable consequence. "®® The tradi- 
tional interlocutory order freely subject to immediate appellate re- 
view (by statutory directive) is the ruling on a party's request for 
preliminary injunctive relief. Neither procedure, however, is closely 
related to most interim rulings by agency hearing examiners. The 
agency initially determines the scope of its jurisdiction when the 
case is docketed, and in any event the issue of jurisdiction is seldom 
within the examiner's province. ^"^ Similarly, administrative agencies 
apparently do not have a trial court's power to issue peremptory 
interlocutory orders. ^"^ 

There is one limitation on the final judgment rule that does 
relate to agency review of interlocutory orders issued by a trial 
examiner. Congress modified the final judgment rule by enacting 
the Interlocutory Appeals Act of 1958.^^2 'phis ^ct empowers any 

Courts §§ 101-02, at 452-63 (1970); Crick, The Final Judgment As a Basis for Appeal, 
41 Yale L.J. 539 (1932); Frank, Requiem for the Final Judgment Rule, 45 Texas L. 
Rev. 292 (1966); Note, Appealability in the Federal Courts, 75 Harv. L. Rev. 351 (1961). 
While a £ew states, notably New York, depart from the final judgment rule and 
generally allow appeals from interlocutory orders, they do not allow appeals during 
the course of a trial. See F. James, Civil Procedure 50 (1965). 

95. See Note, Interlocutory Appeal from Orders Striking Class Action Allegations, 
70 CoLUM. L. Rev. 1292, 1302 (1970). 

96. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). 

97. See, e.g., C. Wright, supra note 94, § 102, at 461-62. 

98. Id. 

99. Baltimore Contractors v. Bodinger, 348 U-S. 176, 181 (1955). See 28 U.S.C. 
§ 1292(a) (1964); 11 U.S.C. §§ 47-48 (1964). 

100. E.g., 47 C.F.R. § 1.291(a)(2) (1971). 

101. See ICC v. Brimson, 154 U.S. 447, 485 (1894) (dictum). See generally 1 K. 
Davis, Administrative Law Treatise § 3.11, at 212-15 (1958); W. Gellhorn & C. Byse, 
Administrative Law 610-11 (4th ed. 1960). 

102. 28 U.S.C. § 1292(b) (1964). See Bourdeaux, Federal Interlocutory Appeals Act — 
A Five Year View, 35 Miss. L.J. 55 (1963); Wright. The Interlocutory Appeals Act of 


district judge to certify for immediate appeal an order "not other- 
wise appealable" if in his opinion the order involves a "controlling 
question of law as to which there is substantial ground for difference 
of opinion and [in which] an immediate appeal . . . may materially 
advance the ultimate termination of the litigation."^"^ The grant of 
permission to appeal — even though certified by the district court — is 
further subject to the discretion of the court of appeals. ^^^ District 
courts understandably have not been overly sympathetic to claims 
of error. Neither have they been easily persuaded that the order 
involves a "controlling question of law" or that immediate appeal 
will speed the final determination.^"^ It is not surprising, then, that 
this exception has not been of much importance. Indeed, in only 
about 1 / 10 of 1 % of all cases filed in the district courts do trial judges 
certify an interlocutory ruling to the court of appeals. ^°^ It is, at 
most, a crack in the otherwise impenetrable wall insulating trial 
court procedures from appellate review. 

Even with these exceptions, the practical effect of the final judg- 
ment rule is that many (probably most) areas of procedure are largely 
the domain of trial court law. This is true of the law governing pre- 
trial procedures as well as that concerning the conduct of the trial. 
This fact puts great responsibility on the trial courts in these areas; 
the consensus is that "in the federal system, at any rate, this is prob- 
ably not misplaced."^"^ 

IV. Observations and Recommendations 

The overriding lesson from this study is that agencies have been 
unnecessarily reluctant to delegate sufficient authority to their ex-' 
aminers. Immediate reconsideration of discovery orders and review 

1958, 23 F.R.D. 199 (1959); Note, Section 1292 (b): Eight Years of Undefined Discretion, 
54 Geo. L.J. 940 (1966). 

103. 28 U.S.C. 1292(b) (1964). The court of appeals is not required to accept the 
appeal. Section 1292(b) provides, rather, that after the appeal is certified the court of 
appeals "may ... in its discretion . . . permit" it to be taken. 

104. 9 Moore's Federal Practice % 110.22[4], at 264-65 (2d ed. 1970). 

105. E.g., A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 443 (2d Cir. 1966). 
See ABA Special Comm. on Fed. Rules of Proc, Report, 38 F.R.D. 95, 104 (1965). 

106. Out of over 80,000 civil cases pending in the district courts during fiscal 1969, 
only 101 interlocutory appeals were certified, and the courts of appeal allowed the 
challenge to the trial court's ruling in only 64 of these cases. By contrast, over 10,000 
appeals from final judgments were taken to the courts of appeal in this same period. 
Director of the Administrative Office of the U.S. Courts, Annual Report 1969, at 
108; id., 1970, at 117, 195. 

107. F. James, supra note 94, at 53. 


of trial rulings are not exceptional and when such frequent inter- 
ruptions are permitted, the results are not impressive. Hearings are 
not expedited; irreparable harm is not necessarily avoided; and uni- 
formity of hearing practices is not ensured. However, when hearing 
examiners are granted authority to rule on all interlocutory questions 
and to control the general availability of interlocutory review, hear- 
ings are expedited and fairness is usually preserved. Occasional ex- 
ceptions exist, of course. The NLRB's informal yet freely available 
interlocutory review is a prime example of a successful deviation 
from this model. ^''^ Application of the NLRB's approach to other 
agencies seems unlikely because of its dependence on an exceptionally 
experienced and able solicitor, delegation of decision authority by 
proxy to the members' staffs, relatively simple cases, and the pressure 
of time. Hence, unless an agency's hearing structure and personnel 
present circumstances comparable to those of the NLRB, the formal- 
ized procedures of other agencies are likely to be a better guide. As 
our recommendations illustrate, we think there are features in almost 
every agency's rules worth emulating. On the other hand, the rules 
of no one agency embody all our recommendations. 

If the past is prologue, the central features of an agency's inter- 
locutory appeal practice should incorporate two principles: broad 
delegation of authority to the presiding officer to decide initially all 
interlocutory questions and final authority in the presiding officer, 
except in extraordinary cases, to control whether interlocutory ap- 
peal shall be available. Exceptions to these principles should be 
narrowly identified in the rules. Also important is agency adoption 
of a general practice of not postponing the hearing pending review, 
of deciding the appeal on the record made before the examiner, and, 
when authorized, of delegating authority to its staff to confirm the 
examiner's ruling. Our recommendations seek to implement these 

Several additional suggestions should also be considered.^'^^ First, 
there is little reason for an agency to follow a different interlocutory 
procedure because of the subject of the appeal. Different techniques 
within one agency can seldom be justified. The uses by the FTC of 

108. See pt. II. B. 6. supra. The FCC's record shows that only limited restraints on 
interlocutory appeals may be applied by other means. Its recent move allowing hearing 
examiners to control most interlocutory appeals suggests, however, that this alternative 
is unnecessarily costly. 

109. They did not warrant inclusion in the official recommendations o£ the Ad- 
ministrative Conference, however. 


a two-step process for most appeals and a one-step procedure for 
others"" (especially when the practice is to treat them identically) 
cannot be rationally justified. Confusion without any corresponding 
benefit is the result. Moreover, special procedures are usually buried 
within the practice rule relating to the subject of the appeal rather 
than included in other interlocutory appeal rules. Sound manage- 
ment suggests that an agency separate its appellate rules, whether 
interlocutory or final, from other practice rules, and that one section 
contain all rules governing appeal procedures.^" 

Second, many agencies do not maintain adequate records of inter- 
locutory appeals. For example, the ICC simply has no knowledge of 
how many interlocutory appeals are sought or decided annually, and, 
consequently, no knowledge of whether interim review constitutes a 
serious or immaterial interference in a substantial number of its 
hearings. Likewise, it does not have any information on what sub- 
jects, if any, are the current sore spots causing most of the interme- 
diate appeals. If administrative procedures are to remain abreast 
of continuing developments, some mechanism needs to be developed 
for determining where the problems are and what they cost. To 
date, recordkeeping is the only viable solution.^^2 jj jg nQt suggested 
that agencies establish massive record retention or information re- 
trieval systems solely for measuring the impact of interlocutory re- 
view. Where these systems do exist, they should include information 
on interlocutory appeals. Otherwise, a simple index of all interloc- 
utory appeals, cross-referenced by subject matter, case title, and 
docket number, should prove adequate. If possible, other informa- 
tion should also be recorded. For instance, obtaining data for this 
study would have been relatively simple if agencies had maintained 

110. See text accompanying notes 62-73 supra. 

111. The Conference is not totally blameless in this connection. Its summary 
decision and discovery recommendations suggest three separate tests. Recommenda- 
tion 20 of the Administrative Conference of the United States, Summary Decision in 
Agency Adjudication § 5, in Ad. Conf. 1970 Annual Report 42 (1971); Recommenda- 
tion 21 of the Administrative Conference of the United States, Discovery in Ad- 
ministrative Adjudication ^f 2(6), 7(b), in id. at 44. This inconsistency was pointed 
out to the Conference but to no effect. Proceedings of the Administrative Conference of 
the United States, Fourth Plenary Session 89 (June 2, 1970). See also Gellhorn & 
Robinson, Summary Judgment in Administrative Adjudication, 84 Harv. L. Rev. 612, 
629 n.88 (1971). 

112. Senator Edward V. Long, one of the authors of the act establishing the 
Administrative Conference, did suggest an "ombudsman" role for the Conference, but 
this suggestion has not been implemented. Long, Public Defender, N.Y. Times, Nov. 27, 
1966, § 7, at 54 (Book Review). In any case, it would be a costly alternative when 
agencies could monitor their own procedures. 


records showing what delay or time-saving resulted from the interim 
appeal, which party sought the appeal, and whether the examiner's 
interlocutory ruling was affirmed. This suggestion is consistent with 
(and arguably required by) amended section 3 of the Administrative 
Procedure Act,^^' and probably would be unnecessary if agencies 
complied with another recommendation of the Administrative Con- 

Finally, these records should be used by agencies to monitor their 
procedures. Periodic self-analysis by the agency, if possible with the 
assistance of interested and informed outsiders, is probably the only 
way an agency can be certain that its rules of practice respond to 
current needs.^^'* Many agencies have already taken this tack.^^' 

The Administrative Conference of the United States made the 
following recommendation at its Fifth Plenary Session: 

Recommendation: Interlocutory Appeal Procedures 

Interlocutory appeal procedures for agency review of rulings 
by presiding officers must balance the advantages derived from im- 
mediate correction of an erroneous ruling against interruption of 
the hearing process and other costs of piecemeal review. Striking an 
appropriate balance between these competing concerns requires that 
the exercise of discretion in individual cases be carefully circum- 
scribed. Procedures that delegate the responsibility for allowing in- 
terlocutory appeals to presiding officers, with a reserved power in the 
agency to handle exceptional situations, have proven most satis- 

Each agency which handles a substantial volume of cases that 

113. Each agency also shall maintain and make available for public inspection and 
copying a cuiTent index providing identifying information for the public as to any 
matter issued, adopted, or promulgated after July 4, 1967, and required by this para- 
graph to be made available or published. 5 U.S.C. § 552(a)(2) (Supp. V, 1965-1969). 

114. Recommendation 14 of the Administrative Conference of the United States, 
Compilation of Statistics on Administrative Proceedings by Federal Departments and 
Agencies, in Ad. Conf. 1969 Annual Report 43-44 (1970). 

115. See Recommendation 14, supra note 114, } 5, at 44. 

116. See FTC Advisory Council on Rules of Practice, 36 Fed. Reg. 4728 (March 11, 

117. Ad. Conf. 1970 Annual Report 50-51 (1971). This recommendation supersedes 
§ 5 of Recommendation 20 and f fl 2(6) and 7(b) of Recommendation 21, adopted June 
2-3, 1970, insofar as they deal with interlocutory appeals. See note 111 supra and 
accompanying text. 


are decided on the basis of a record should adopt interlocutory ap- 
peal procedures based on the following principles: 

1. Presiding officers should be authorized to rule initially on 
all questions raised in the proceedings. A ruling by the presiding 
officer, supported by a reasoned statement, usually should precede 
interlocutory review of the question raised. 

2. In general, interlocutory appeal from a ruling of the presid- 
ing officer should be allowed only when the presiding officer certifies 
that (a) the ruling involves an important question of law or policy 
concerning which there is substantial ground for difference of 
opinion; and (b) an immediate appeal from the ruling will materially 
advance the ultimate termination of the proceeding or subsequent 
review will be an inadequate remedy. 

3. Allowance of an interlocutory appeal should not stay the 
proceeding unless the presiding officer determines the extraordinary 
circumstances require a postponement. A stay of more than 30 days 
must be approved by the review authority. 

4. If the number of interlocutory appeals in an agency is sub- 
stantial, the authority to affirm, modify, or reverse the presiding 
officer's interlocutory ruling should be delegated, to the extent per- 
mitted by law, to a review authority designated by the agency. 

5. Unless the review authority orders otherwise in the particu- 
lar case, the review authority should decide the interlocutory ap- 
peal on the record and briefs or oral argument. The review author- 
ity should summarily dismiss an interlocutory appeal whenever it 
determines that the presiding officer's certification was improvidently 
granted or that consideration of the appeal is unnecessary. If the re- 
view authority does not specify otherwise within 30 days after the 
certification or allowance of the interlocutory appeal, leave to ap- 
peal from the presiding officer's interlocutory ruling should be 
deemed to be denied. 

6. Interlocutory review by petition to the review authority with- 
out certification by the presiding officer should be restricted to ex- 
ceptional situations in which (a) vital public or private interests 
might otherwise be seriously impaired, and (b) the review authority 
has not had an opportunity to develop standards which the presid- 
ing officer can apply in determining whether interlocutory review is 

The first recommendation, that all interlocutory questions be 
ruled upon first by the presiding officer, is a necessary predicate of 
sound trial management. The examiner must be in control of the 
proceeding assigned to him. It is inconsistent, at best, to deny an 
examiner the authority to rule on interlocutory issues yet, at the 
same time, expect him to direct discovery and expedite the hearing. 
He is in the best position to know the case fully, to appreciate 


whether the ruling effectively implements the agency's purpose, and 
to ensure that the ruling meets the requirements of fairness and 
expedition at the trial level. This does not mean that only the ex- 
aminer can provide such guidance and that, therefore, he should be 
the final authority. On the other hand, it does seem myopic to pass 
interlocutory questions to a higher authority without first obtaining 
the views of the presiding officer. Although agencies generally have 
reserved some questions for their exclusive consideration, we can 
see no justification for denying initial consideration by the examiner 
as long as the case is assigned to him.^^^ The slight costs of delegation 
of authority to the examiner are the following: (1) the arguments 
the parties would otherwise address to the review authority are made 
to the examiner (but the arguments, briefs, and the examiner's ruling 
are included in the record if the appeal is certified); and (2) requiring 
the examiner's ruling will take additional time. The substantial 
benefits from this recommended procedure are the following: (1) the 
examiner is in a position to develop consistent, informed decisions 
since he is likely to be expert on the procedural questions that domi- 
nate interlocutory review;^^^ (2) the examiner's ruling will avoid 
many appeals and dissuade others; (3) the review authority's time is 
freed for consideration of more significant policy questions; and (4) 
the review authority has the benefit of the examiner's guidance on 
the questions that are appealed. 

The second recommendation — that interlocutory appeals gener- 
ally be limited to questions certified to the review authority by the 
examiner — is the core of this proposal. Not surprisingly, hearing 
examiners uniformly urge that they be delegated this authority. 
Their argument is not persuasive, however. In their frank desire to 
emulate the position and prestige of federal district court judges, 
they contend that they must be given commensurate power. If 
reliance is placed upon a principle at the opposite pole of Lord 
Acton's famous dictum,^2o [^ jj undoubtedly true that at some point 
the failure to delegate authority to a hearing examiner will impair 
his performance. Where this minimum authority level is remains un- 

118. Before the matter is assigned to an examiner, or once the case is no longer 
on the examiner's docket, "interlocutory questions" (e.g., extensions of time for filing 
appeal briefs) should be addressed to the review authority. 

119. It is not uncommon for an agency to be unaware of its prior interlocutory rul- 
ings. See, e.g., Gellhorn, The Treatment of Confidential Information by the Federal 
Trade Commission: The Hearing. 116 U. Pa. L. Rev. 401, 429 n.l53 (1968). 

120. "Power tends to corrupt; absolute power corrupts absolutely." Letter to 
Bishop Mandell Creighton (1887). 


clear, but authority to control access to intermediate appeals hardly 
appears to be the cut off point.^-^ In any event, this recommendation 
rests upon another, more persuasive argument. The recommenda- 
tion's primary justification is experience. Agencies relying upon their 
examiners to limit access to interlocutory review have, in general, 
suffered fewer hearing interruptions and have benefited from speed- 
ier hearings. The examiner is in charge; he controls the scope of 
discovery and the direction of the trial. 

The standard for certification of interlocutory rulings by the 
examiner — the focus of the Administrative Conference's second rec- 
ommendation — is unexceptional. With two major modifications, it 
hews closely to the judicial standard set forth in section 1292(b).^2^ 
The more restrictive judicial standard of a "controlling question of 
law" is expanded to include important questions of both policy and 
law.^2^ This change reflects the policy function of an agency hearing 
and suggests that policy questions may deserve interim agency guid- 
ance. On the other hand, the basic standard contemplates three types 
of rulings that are also covered by the judicial analogue: (1) those 
which are novel or without precedent and about which there could 
be a difference of opinion; (2) those which take a position contrary 
to prior agency authority; and (3) those which conform with a prior 
agency position but might now be challenged on a new ground.^^* 
The other significant alteration we suggest to the judicial standard 
is to authorize immediate review when subsequent consideration by 
the review authority would be an inadequate remedy, even though 
immediate revie^v would not necessarily advance the ultimate termi- 
nation of the litigation. This modification is designed to reach im- 
portant interlocutory questions that would become moot if immedi- 
ate appeal is not available or that otherwise would not constitute 
prejudical error.^^^ 

The third recommendation seeks to assure that, even when 
allowed, interlocutory review will not delay agency hearings. The 
purpose here is to minimize delay. In line with other provisions 
in these recommendations, we suggest that primary authority for 

121. The FCC's successful experience with freely available appeals to its Review 
Board is the most obvious rebuttal case in point. See pt. II. B. 1 supra. 

122. 28 U.S.C. § 1292(b) (1964). See text accompanying notes 102-06 supra. 

123. See text following note 117 supra. 

124. See Note, supra note 102, at 948. 

125. E.g., orders authorizing discovery, disclosing confidential information, denying 
a privilege, or setting the time and place of hearing. 


Staying the proceeding for 30 days should be delegated to the 
presiding officer. If a further extension is warranted, not only the 
examiner's but also the review authority's approval must be ob- 
tained.^2® This provision eliminates inadvertent delay. Delay will 
occur only when the agency consciously accepts it. A corollary re- 
quirement, which all agencies appear to have satisfied (and therefore 
is not included in this recommendation), is that a time limit be 
specified within which the objecting party must file its interlocutory 
appeal from the challenging ruling. 

The fourth recommentation is suggested by the Administrative 
Conference's earlier alternative recommendation that agencies with 
a substantial adjudicative caseload should delegate review authority 
to an employee board.^^i Yhe experience of the FCC and SEC sup- 
ports this proposal. Its effect is to enhance the examiner's position 
and yet to provide, insofar as structure can, a method for expediting 
most appeals. A review board also insulates the adjudicative process 
from commission interference until the final appeal, and frees the 
commissioners (at least in part) from adjudicative restrictions until 
the case is before them. On balance, we prefer the FCC approach of 
delegating to the Review Board the power both to affirm and to re- 
verse the examiner. This approach leaves the agency free of all 
interim adjudicative responsibility. The Review Board is better 
equipped to render consistent, soundly reasoned opinions on the 
technical procedural questions that dominate interlocutory appeals. 
The alternative SEC approach of limiting the employee board 
to affirming the examiner's ruling is satisfactory, however, and is 
logically consistent with the Conference's prior "certiorari" review 

126. This requirement limiting the examiner's authority to delay the proceeding is 
not inconsistent with our earlier recommendation increasing the examiner's decisional 
power. Here the restriction is designed to focus the review authority's attention on the 
delay resulting from the interlocutory appeal. Moreover, this requirement dovetails 
with ^ 5 of the recommendation that permission to appeal from the examiner's 
decision is automatically denied after 30 days unless the review authority specifically 
rules otherwise. See text following note 117 supra. 

127. See Recommendation 6 of the Administrative Conference of the United States, 
Delegation of Final Decisional Authority Subject to Discretionary Review by the Agency, 
in Ad. Conf. 1969 Annual Report 38-39 (1970); Freedman, supra note 4. 

128. See Recommendation 6, supra note 127. See also Recommendation 9 of the 
Administrative Conference of the United States (1961-1962). S. Doc. No. 24, 88th Cong., 
1st Sess. 153-63 (1963); Auerbach, Scope of Authority of Federal Administrative Agencies 
To Delegate Decision Making to Hearing Examiners, 48 Minn. L. Rev. 823 (1964). For 
another variant, which would delegate authority to affirm to the chief examiner, see 
Gellhorn, The Treatment of Confidential Information by the Federal Trade Com- 
mission: Pretrial Practices, 36 U. Chi. L. Rev. 113, 182-83 (1968). 


The fifth recommendation deals with simple housekeeping rules 
of practice that only a few agencies currently apply.^^a Briefly stated, 
it generally requires the parties to make their only argument to the 
examiner — and to stand by that argument — and imposes a time limit 
on interlocutory interruptions. It sacrifices a party's opportunity to 
respond to the examiner's ruling; however, the impact of this pro- 
posal can cut in both directions, since it likewise prevents the ap- 
pellee from shoring up an examiner's erroneous justification. The 
time saved by this procedure, in addition to the fact that each party 
has an opportunity during review of the examiner's initial decision 
to challenge the interlocutory ruling, further justifies this approach. 
Finally, this recommendation incorporates the double-discretion stan- 
dard governing interlocutory appeals in the federal courts. Under 
this approach, an interlocutory appeal is subject to the discretion of 
both the presiding officer and the review authority; either can deny 
or grant permission to appeal, except that the review authority, of 
course, has the final word. 

Since power needs restraint, the sixth recommendation incorpo- 
rates a safety-valve procedure by allowing the review authority, in 
exceptional circumstances, to accept interlocutory appeals that an 
examiner refuses to certify. In implementing this recommendation, 
each agency should carefully spell out these categorical exceptions. 
Otherwise, they can become the exceptions that destroy this proposal. 

V. Conclusion 

If adopted, these recommendations will alter the relationship 
between some agencies and their hearing examiners. The Admin- 
istrative Procedure Act (APA) seeks to assure that an examiner is in- 
dependent, that his initial decision will be based on the facts in the 
record, and that the hearing — at least if required to be decided on the 
record — will maintain the basic fairness markings of a judicial trial. 
The APA's structural protections are unnecessarily burdensome, 
however, unless the examiner is in complete charge of the proceeding 
assigned to him. If the agency may freely interrupt and review every 
move he makes, the statutory mandate is duplicative. Unrestricted 
interlocutory review creates a dual system of hearings, with little 
independence or discretion left to the hearing officer. If, on the other 
hand, interlocutory review is sensitively restrained, the trial exam- 

129. This proposal is patterned, in part, after two CAB and FPC rules. 14 C.F.R. 
I 302.18(f| (1971); 18 C.F.R. § 1.28(a) (1971). 


iner can shape and determine the conduct of the proceeding without 
impairing the fairness of the hearing. That, in essence, is the object 
of this proposal. 


Report in Support of Recommendation 71-2 (As published in : 23 Administrative 
Law Review (May 1971)), 



Donald A. Giannella* 

Supporters of the Freedom of Information Act believed that its passage 
would usher in a new era in which information concerning government 
operations would be freely and easily accessible to all citizens. Prior to its 
enactment the Public Information Section of the Administrative 
Procedure Act had not provided for public access to government records 
generally. It had permitted withholding of agency records if secrecy was 
needed either in the public interest or for good cause found, and it had 
required disclosure only to persons properly and directly concerned with 
the subject matter of an inquiry. The new Act, which went into effect in 
July 1967, did away with these requirements. Any citizen is now legally 
entitled to have access to any record held by a federal agency unless it 
contains certain kinds of information specified in the Act. Except for this 
exempt information, a person whose request for a record has been denied 
can bring suit in a federal district court to compel its production. In such 
an action the burden is on the agency to sustain its decision to withhold 
the record. 

A number of charges have been made that contrary to the Act agencies 
are improperly invoking statutory exemptions to withhold records, are 
delaying action on requests and are generally taking steps designed to 
frustrate public access to government information. This article is based on 
research undertaken for the Committee on Information, Education and 
Reports of the Administratice Conference of the United States to 
determine the existence and extent of problems in implementing the 
Freedom of Information Act. The research included a comprehensive 
study of agency regulations, a limited survey of persons who have 
requested records from federal agencies, and personal interviews with 
officials in several federal agencies and departments.** On the basis of 

•Professor of Law, Villanova Law School; A.B. Harvard, 1951. L.L.B., 1955. 

••Interviews were conducted at the Office of Economic Opportunity, the Civil 
Aeronautics Board, the Federal Trade Commission, the Department of Agriculture, the 
Department of the Interior, the Department of Transportation, the Department of Health, 
Education and Welfare and the Department of Defense and its component departments. 


this research a proposal was drafted recommending that agencies adopt 
certain regulations governing procedures for the handling of requests 
for records. Recommended guidelines for such regulations appear in 
Appendix A. The reasons supporting the recommendations are set out in 
the body of the article. t 

The Problem 

The main purpose of the Freedom of Information Act' is the public 
dissemination of information relating to government activities. The 
Senate report on the Act referred to Madison's observation that "popular 
government" requires "popular information" and stressed the 
importance "of having an information policy oi full disclosure."^ In 
signing the bill into law President Johnson stated that "a democracy 
works best when the people have all the information that the security of 
the nation permits."' 

In line with this purpose of a reasonably complete and open 
information policy, the Act gives any citizen the right to examine records 
held by government agencies except for materials falling into one of nine 
specifically listed categories.^ The exempt categories were designed to 

tAt its plenary session on May 7 and 8 the Administrative Conference of the United 
States adopted as Recommendation No. 24 the proposal as it appears in appendix A. The 
Conference did not evaluate or approve the contents of the instant article. The author bears 
sole responsibility for the views expressed. The contents of the article were made available 
to the members of the Conference in support of the recommendation. 

'81 Stat. 54, 5 U.S.C. § 552 (1964 ed. Supp. IV). 

•S. Rep. No. 813, 89th Cong., 1st Sess. 2-3 (1965) (emphasis added) [hereinafter cited as 
S. Rep.]. 

'Statement by President Johnson Upon Signing Public Law 89-487 on July 4, 1966, as 
reproduced in 20 Ad. L. Rev. 263 (1968) (emphasis added). 

^These exemptions are found at 5 U.S.C. § 552(b) (1964) and read as follows: 
This section does not apply to matters that are — 

1) specifically required by Executive order to be kept secret in the interest of the 
national defense or foreign policy; 

2) related solely to the internal personnel rules and practices of an agency; 

3) specifically exempted from disclosure by statute; 

4) trade secrets and commercial or financial information obtained from a person 
and privileged or confidential; 

5) inter-agency or intra-agency memorandums or letters which would not be 
available by law to a party other than an agency in litigation with the agency; 

6) personnel and medical files and similar files the disclosure of which would 
constitute a clearly unwarranted invasion of personal privacy. 

7) investigatory files compiled for law enforcement purposes except to the extent 
available by law to a party other than an agency; 

8) contained in or related to examination, operating, or condition reports prepared 


protect military secrets, internal instructions to agency staff, and 
confidential commercial, financial, or personal information about private 
parties that has found its way into government files; they were also 
intended to prevent premature disclosure of investigatory files and to 
preserve the confidentiality of internal memoranda where appropriate. 
These exemptions have been criticized as being generally too broad and 
yet too narrow where p)ersonal privacy is involved.^ To date there is little 
evidence that the Act has resulted in significant invasions of personal 

No suits are known to have been brought under the Act by members of 
the press as of the date of this article, even though the Act was largely the 
product of their efforts.^ This might indicate that a steady flow of records 
is being made available to the press and that the Act has served its main 
purpose. However, the absence of litigation does not of itself warrant this 
conclusion. Newsmen do not generally dig out stories relating to current 
events from government files; they are more likely to rely on information 
provided to them officially by the agencies or unofficially by 
knowledgeable contacts, as was the case prior to the Act.* Even when they 
do seek government records in relation to a current event, the legal right 
created by the Act is of little direct and immediate assistance because of 
the time pressure to get the story. It may be that the press has benefited 
substantially from the Act to the extent that it stands as a potential club 
and to the extent that it has liberalized agency attitudes generally, but this 
is a difficult matter to measure. 

Recently Ralph Nader and his associates have leveled serious public 
criticism at agency implementation of the Freedom of information Act.** 

by, on behalf of, or for the use of an agency responsible for the regulation or 
supervision of financial institutions; or 

9) geological and geophysical information and data, including maps, concerning 
5. See Davis, The Information Act: A Preliminary Analysis. 34 U. Chi. L. Rev. 761, 
802-04 (1967); for a discussion of invasion of privacy problems that might arise under the 
Freedom of Information Act, see Miller, Personal Privacy in the Computer Age: The 
Challenge of a New Technology in an Information-Oriented Society, 67 Mich. L. Rev. 1089, 

•The agency officials interviewed all indicated that great care is taken to avoid 
unwarranted invasions of personal privacy or disclosure of confidential or privileged 
commercial information. 

'H.R. Rep. No. 1497, 89th Cong., 2nd Sess. 2-3 (1966) [hereinafter cited as H. Rep.j. 
*5ee Archibald, Whose FOl Law? The Bulletin of the American Society of Newspaper 
Editors, Dec, 1969, p. 10. 

'Nader, Freedom from Information: The Act and the Agencies, 5 Har. Civ. R.-Civ. Lib. 
L. Rev. 1 (1970); Nader, A Status Report on the Responsiveness of Some Federal Agencies 
to the People's Right to Know about their Government, statement released publicly on 

493-361 O - 73 - 9 


This criticism was based on the experience of various "study groups" in 
attempting to obtain access to the records of various agencies in the spring 
and summer of 1969. The criticism dealt in large part with the expansive 
view reportedly taken by agencies of the broad exemptions listed in the 
Act and with the consequent withholding of records that should have been 
released. Interpretation of the broad and ambiguous exemptions written 
into the statute has been a predictable and recurring cause of difficulty.'" 
The ambiguity of the exemptions has been heightened by a sketchy and 
contradictory legislative history." The resulting uncertainty has been 
compounded by the doctrine that a court of equity will not grant specific 
performance where, on balance, the benefits derived from the relief sought 
are outweighed by its harmful consequences.'^ At least one court has 
invoked this doctrine to grant only limited relief where unqualified 
application of the Act as written would have led to a contrary result." 

The continuing uncertainty built into the Act gives credence to the 
claim that the various agencies are interpreting the exemptions 
inconsistently. The Justice Department has taken some steps to secure 
uniform administration of the Act.'* It is possible, however, that nothing 
short of statutory amendment can bring about an effective and lasting 

August 29. 1969, and reproduced in 1 15 Cong. Rec. H7480 (daily ed. September 3, 1969); 
Note, The Freedom of Information Act and The Federal Trade Commission: A Study in 
Misfeasance. 4 Harv. Civ. R.-Civ. Lib. L. Rev. 345 (1969). 

^*See Davis, supra note 5. 

"/J. at 762-63, 809-810. Professor Davis points out that the "Senate Committee is 
relatively faithful to the words of the Act," but that the House Committee seems "to pull 
away from the literal statutory words" in some cases, "almost always in the direction of 
nondisclosure." Id. at 763. 

"Professor Davis, in accord with the Attorney General's Memorandum on the Public 
Information Section of the Administrative Procedure Act. reprinted in 20 Ad. L. Rev. 263, 
296 (1968), concludes that the court may refuse to grant relief under the Act on equitable 
principles. 34 U. Chi. L. Rev, at 767. He appears to welcome the exercise of broad judicial 
discretion to remove from the reach of the Act non-exempt records that nonetheless should 
not be disclosed. Id. at 802. Others would have the courts exercise only minimal equitable 
discretion in enforcing the Act, urging them to withhold the production of non-exempt 
records "only for those clearest equitable considerations for which Congress did not 
establish standards" in the Act. Note, Freedom of Information: Court May Permit 
Withholding of Information not Exempted from Disclosure under Freedom of Information 
Act. 5 Har. Civ. R.-Civ. Lib. L. Rev. 121 (1970). 

"Consumers Union v. Veterans Administration, 301 F. Supp. 796 (S.D.N.Y. 1969). 

"Shortly after passage of the Act the Attorney General issued a 47 page memorandum 
interpreting the Act as a guide to its application. Attorney General's Memorandum on the 
Public Information Section of the Administrative Procedure Act. reprinted at 20 Ad. L. 
Rev. 263 (1968). (hereinafter cited as Att'y Gen. Memo.]. The Justice Department has 
formed an internal committee on Freedom of Information matters to give advice to agencies 
on dirficult questions arising under the Act. It has encouraged all agencies to consult with the 
committee before issuing a fmal denial in cases raising substantial doubts. 


solution to the problem. Neither the proposed guidelines nor this article 
deal with the large and fundamental problems created by the broad 
exemptions in the Act. They deal instead with the more limited matter of 
uniform procedural guidelines to implement the basic policy of the law. 
The problems surrounding the exemptions do, however, provide relevant 
background and give added weight to other difficulties which are the 
subject of the instant proposal. 

Critics have charged that agency delay, evasion, favoritism, 
commingling of exempt with non-exempt material to insulate the latter 
from production, and other practices have created barriers to a free 
information policy.'* These charges may overstate the case to the extent 
that they are based on the limited, somewhat unique experience of the 
study groups. Sweeping requests by the groups for records may have 
generated resistance because of the burdens entailed, particularly where 
agency personnel may have viewed the groups as "raiding parties" 
primarily intent on searching out what was wrong with their operations. 
However, there is some contrary evidence indicating that members of the 
study groups were able to obtain records that would have been withheld in 
the case of lesser known requesters because of the unfavorable publicity 
that the groups could generate in the case of a refusal. Members of one 
group claimed to have received records that had been previously denied 
them, but only after they revealed their affiliation.'* One member reported 
in an interview that a group was able to obtain records which the wife of 
another member had earlier been told did not exist. 

To determine whether the difficulties reported by the study groups are 
truly representative, a questionnaire was sent to approximately four 
hundred organizations that might be interested in obtaining records from 
the federal government. The results of the survey, which are set out in 
Appendix B, are of limited value because only ten per cent of the 
questionnaires were returned; and of these, twenty-five per cent indicated 
that the respondents had had no experience in requesting records from the 
federal government. The survey does, however, support the conclusion 
that the difficulties encountered by the study groups are not isolated 

On the basis of this survey, reported and publicized cases, interviews 
with individuals who have requested records, and information provided by 
the agencies in interviews or in responses to Congressional inquiries, it 
appears that the following kinds of difficulties have been encountered in 
implementing the Freedom of Information Act: 

^*See note 9, supra. 

'•Nader, Freedom from Information: The Act and the Agencies. 5 Harv. Civ. R.-Civ. Lib. 
L. Rev. 1, 12(1970). 


Equal Access to Records — Informing the Public. There are practical 
problems in realizing the Act's goal that all citizens should have equal 
access to government information. The charge has been made that the 
agencies display favoritism with regard to freedom of information 
matters, it is claimed that the agencies compile information useful to 
those having cordial contacts with them while refusing to collect data of 
comparable interest to the general public, and that records made quickly 
available to these insiders are held up when requested by others.'^ The Act, 
in making information available primarily on the initiative of the private 
citizen, fully serves only those with sufficient knowledge, interest and 
resources.'* This naturally places p)ersons having established contacts with 
agencies in a more favorable position, if for no other reason than their 
great familiarity with agency operations and personnel. Short of 
eliminating existing social and economic inequalities, completely equal 
access to government information cannot be achieved as a practical 
matter. However, procedures and practices implementing the Act should 
seek to limit such disadvantages as far as possible. 

Evasive and Obstructive Practices — Formal Requirements for 
Requests. In response to questionnaires or in interviews a few 
disappointed requesters have voiced the suspicion or conviction that 
agency officials have hidden records, giving misleading information or 
engaged in similar practices. To date our investigation has not revealed 
widespread complaints about these kinds of practices apart from the 
experience of the Nader "study groups," some of which claim to have 
encountered the deliberate secretion of records, false information and 
other deceptive practices." However, some agency regulations tend to 
inhibit requests because of excessive and unnecessary requirements as to 
the form of the request.^" Some agency regulations and practices appear to 
require as unnecessarily high degree of specificity that goes beyond the 
statutory requirement that the records requested be "identifiable." 

"Nader, supra note 16, at 11-12. 

"As a report of the House Committee on Government Operations observes, "The public, 
as well as the Government, has an obligation to know the law." Freedom of Information Act 
8, 90th Cong. 2d Sess. (Comm. Print 1968). The Output Systems Corporation is helping 
private citizens and corporations to meet that obligation in a two-volume publication 
entitled "Legally Available U.S. Government Information as a Result of the Public 
Information Act." The price of the publication, which is primarily aimed at persons 
interested in procurement information, is $84.00. Although for the most part the material is 
reproduced verbatim from sources available to the public, notably the Code of Federal 
Regulations and the Federal Register, it would require considerable time and research ability 
for an individual to collect all this information by himself. 

"Nader, supra note 16, at 10-13. 

*See text infra at notes 35-37. 


Insistence on such specificity can effectively defeat many valid requests for 
information where the requester does not know just what records are in 
existence but does know precisely the kind of information he is seeking. In 
this connection, the treatment of broad categorical requests has given rise 
to somewhat inconsistent regulations among the agencies, to special 
problems with regard to handling exempt information and records, and to 
judicial decisions in conflict with agency practices and regulations 
concerning whether broad categorical requests come within the Act's 
"identifiable" records requirement.^' 

Delay. Interviews at two agencies revealed that action on some requests 
had been pending for months while the legal basis and policy reasons for 
possibly withholding the records were being studied. The primary reason 
for the delay appeared to be difficulty in getting the necessary officials to 
turn away from other matters and review the request. In one case a final 
decision had not yet been made on a request submitted more than a year 
prior to our visit. Concern that hasty action would release controversial 
material that "might be exempt" caused the delay. The Consumers 
Union of the United States waited for ten months to obtain a final 
determination on a request made under the Act." At another agency 
rather extensive delay has arisen at the appeal stage. It was attributed to a 
change-over in high level officers, a development that creates general 
difficulties rather than special freedom of information problems. 

Commingling of Exempt and N on- Exempt Information. To the extent 
that exempt and non-exempt information and records are indiscriminately 
and unnecessarily commingled, this can have the effect of sealing off non- 
exempt information that the agencies are unable or unwilling to segregate 
from exempt material in response to a request. The Nader study groups 
have charged the agencies in specific instances with deliberately 
combining non-exempt and exempt matters in the same record, or non- 
exempt and exempt records in the same file, so that the entire record or file 
could be withheld.^ Three other charges of suspected commingling of 
exempt with non-exempt material to ensure the secrecy of the latter were 
made by disappointed requesters in interviews. The prevalence of 
unnecessary commingling will naturally be difficult to determine and even 
requesters who suffer as a result of it may be unaware of its presence in 
their particular cases. All the agencies interviewed acknowledged that 

"See text infra at notes 67-68. 

"Prices of Hearing Aids. Hearing Before the Subcommittee on Antitrust and Monopoly 
of the Senate Committee on the Judiciary Pursuant to S. Res. 258. 87th Cong., 2d Sess. 257- 
58 (1968) (paras. 10-18 of plaintiff's complaint in Consumer's Union v. Veterans Adminis- 
tration, 301 F. Supp. 796 (S.D.N.Y. 1969). 

''Nader, supra, note 16 at 9-10. 


there would be substantial but innocent commingling of exempt and non- 
exempt information following normal filing procedures. Whether 
deliberate or accidental, commingling presents a potentially serious 
barrier to implementing the Freedom of Information Act that calls for 
procedures to keep its restrictive effects on the flow of information at a 

Resistance to Act by Lower Level Staff. There is a problem of unknown 
dimensions concerning how lower level personnel are responding to 
requests for records, particularly in the case of large departments. One 
year after the Act went into effect the House Committee on Government 
Operations found "numerous instances" of lower level officials refusing 
to release information that could not be withheld under the Act." One 
officer revealed in a recent interview that contrary to agency policy and 
regulations the staff in charge of procurement matters were somewhat 
uncooperative in producing non-exempt records relating to existing 
contracts where they believed that the requester did not have a proper 
interest in the information. Most of the agency officials interviewed 
suggested that there were probably no serious problems at the operating 
level at the present time but based this conclusion on the relative absence 
of appeals or complaints brought to their attention. This conclusion is 
hardly warranted. In response to the most recent questionnaire on 
freedom of information circulated by the Senate Subcommittee on 
Administrative Practice and Procedure, one large department reported 
finding that records had been denied by various offices holding them 
without any knowledge by the office designated in departmental 
regulations to handle the requests. There may be considerable departures 
of this kind from published agency regulations and policies that do not 
come to the knowledge of the agency's officers principally concerned with 
implementing the Freedom of Information Act. We have come across two 
instances where lower level officials denied access to records of a kind that 
had been recently declared non-exempt in a court decision." in one 
instance the initial denial was reversed within the agency, and in the other, 
reversal appeared to be imminent at the lime the matter was studied. 
Delay, evasiveness and a generally uncoop)erative attitude on the part of 
operating staff are less likely to come to the attention of high level officials 
than outright denials for which an avenue of intra-agency appeal exists. 

"House Committee on Government Operations, Freedom of Information Act 8, 90th 
Cong., 2d Sess. (Comm. Print 1968). 

*The cases involved different departments, but both involved the withholding of land 
appraisals of property sold or purchased by the federal government. The non-exempt status 
of these appraisals was established in Benson v. General Services Administration. 415 F. 2d 
878 (9th Cir. 1969). 


Uniform Fees. The fees charged by agencies for locating and copying 
records are obviously relevant to the attainment of an open information 
policy. Unreasonably high fees can operate as obstacles that tend to 
accentuate sharply the advantage enjoyed by those with an abundance of 
economic resources. Variation in fees from agency to agency is also 
disturbing since it may reflect differing valuations of the public interest in 
making government records freely available, a development not in keeping 
with the policy of the Act. 

Despite these instances of difficulties, one former government official 
who was interviewed gave his opinion that the Freedom of Information 
Act operates tolerably well since sustained efforts to obtain non-exempt 
records will usually be rewarded. Others have voiced somewhat similar 
views. ^' However, the absence of persistence may reflect a lack of 
sophistication and money, not a want of interest. If one examines the 
court cases in which parties have succeeded under the Act, one notes that 
the successful plaintiffs have usually been organizations with substantial 
resources or parties with a significant financial interest in the records 
involved." The ideal goal of a free and open information policy which 
underlies the Act requires all information requests to be treated equally. 
The judicial remedy written into the Act will not assure this goal as a 
practical matter. Agency policies, regulations and practices will be more 
important in realizing it. The guidelines proposed are derived from this 
basic policy goal with an eye to the practicalities of agency operations. 
Although they are tailored to meet certain problems that have arisen 
under the Act, they are primarily put forward as an attempt to develop 
reasonable and practical procedures for agencies to adopt to implement 
the Freedom of Information Act. 

/. Informing the Public of the A vailability of Information 

Achievement of the ideal behind the Freedom of Information Act 
presumes a degree of sophistication on the part of the interested citizen 
that is exceedingly difficult, perhaps impossible, to attain, in order to 
afford ready and open access to information held by the government, the 
Act permits anyone to go beyond what government agencies and 
departments decide to publish and to examine records in government files. 

^Cf. Archibald, supra note 8. 

"General Services Administration v. Benson. 415 F.2d 878 (9th Cir. 1968) (records 
containing information relevant to a tax claim). American Mail Line, Ltd. v. Guiick, 411 
F.2d 696 (D.C. Cir. 1969) (memorandum containing reasoning of Maritime Subsidy Board 
in claiming that plaintiff had to reimburse Government for $3,(XX),000.(X) excess subsidy 
payments); Consumers Union v. Veterans Administration, 301 F. Supp. 796 (S.D.N.Y. 
1969); Tobacco Inst. v. FTC. Civ. Act. No. 3035-67, U.S. DC. Dist. Col., April II, 1968; 
Shell Oil V. Udall. Civ. Act. No. 67-C-321, U.S. D.C. Dist. Col., Sept. 18. 1967. 


To do this the requester must first know what kind of unpublished 
information is legally available to him, the kinds of records in which he is 
apt to find that information, and the agency or department having 
custody of the relevant records. Only an unusually sophisticated and 
enterprising car purchaser would be able to ferret out most of the helpful 
information available from the government, published as well as 
unpublished, relating to the safety, performance and economy features of 
the various makes in which he is interested. To inform the public 
effectively requires positive programs that bring to their attention the 
general availability of certain kinds of information. More centralized, 
elaborate and expensive procedures for analyzing and indexing 
government information and for then publicizing effectively what is 
available would have to be established. For instance, in the area of 
consumer information some agency or department might act as a 
clearinghouse collecting and disseminating all information collected by 
the federal government relating to consumer products. In October, 1970, 
President Nixon issued Executive Order No. 11566 which establishes a 
Consumer Product Information Coordinating Center in the General 
Services Administration.^* As its name suggests, the Center is to act as a 
clearinghouse of consumer product information gained by government 
agencies in their various testing programs. 

The development of such positive programs is beyond the present 
requirements of the Freedom of Information Act, and the issues raised by 
them are beyond the scope of this study. However, there are two 
affirmative steps that can be taken in implementing the Act and they are 
embodied in the guidelines (I): 1) the public listing of officers in charge of 
records; and 2) adoption by the agencies of an express policy of assisting 
all citizens in translating their requests for information into requests for 
identifiable records. 

A . Listing of Officers in Charge of Records 

Ideally, the public should be given maximum information about the 
records that can be found in the various agencies. This could be achieved 
by having the agencies each compile and publish a directory of records. 
The listings of necessity could not cover every kind of internal document 
or body of correspondence that would be open to examination under the 
Act. Agencies with a more easily manageable set of files could provide a 
rather extensive listing of important records in their custody. The CAB 
compiled such a listing in a systematic manner by requesting its various 
offices to inventory the records held by them. From these inventories it 

"SS Fed. Reg. 16675, October 28, 1970. 


compiled a master list of records with accompanying information as to 
their location within the agency. This list was then published as an index 
to the regulations adopted for implementation of the Freedom of 
Information Act.^" In its regulations the FCC also sets forth specific kinds 
of records available to the public and the offices where they may be 

It is difficult to assess the value of such a list. It probably is of limited 
value to the average citizen but could be of considerable help to an 
attorney or a person who is not too familiar with an agency's operations 
and regulations but who is concerned with a particular problem. It is 
possible that it may even be of significant assistance to the specialist in 
some cases since an orderly guide to an agency's records may reveal the 
Existence and location of information never before brought to his 
attention. Along these lines, it may prove to be of value as a helpful 
internal guide to agency staff. 

A basic question is whether the estimated value of such a directory of 
information justifies the burden of compiling it. A regulatory agency 
overseeing a circumscribed area, such as the CAB or FCC, can probably 
compile an inventory of important records more readily than executive 
departments with broad and varied concerns, such as the Departments of 
Agriculture, Interior, or of Health, Education and Welfare. Officials 
interviewed in these large departments questioned the advisability of such 
a directory. Because it is doubtful that the value of such a directory would 
outweigh its cost to the agency in all cases, no recommendation is made on 
this point in the guidelines. However, if an agency finds that there is 
considerable public interest in certain types of records, it should consider 
the desirability of compiling a directory selectively listing those records. 
The Department of Transportation, despite its varied responsibilities and 
extensive files, has compiled a partial listing of the records within its 
subunits as an appendix to the regulations adopted pursuant to the 
Freedom of Information Act.^' 

The proposed guidelines require each agency to compile a brief 
directory containing the names or titles of officers in charge of records at 
the various offices of the agency and their respective addresses. This 
should place a relatively small burden on the agencies and achieve the 
minimum in informing the public where they can get additional 
information concerning records available to them. 

»14 C.F.R., part 200 at 430 (1970). 
'MTC.F.R. § 0.455(1970). 
"49C.F.R.. part7at27(1970). 


B. Agency Assistance 

The second step calling for informal agency assistance to the public is 
essentially hortatory. It involves motivating agency staffs to offer positive 
assistance in reducing a request for information to one for identifiable 
documents. Frequently, this can be done with little effort because of the 
staffs familiarity with the agency's files, in such a case, a passive, 
uncooperative attitude could frustrate efforts to obtain information even 
though the relevant records could easily be identified and readily obtained. 

There is little that can be done in the way of concrete procedures to 
inculcate cooperative attitudes. It would be helpful, however, to convey 
clearly and forcefully to lower-level personnel the agency's commitment 
to positive policies for the handling of information requests. Agencies 
could issue directives to their staff requiring them to assist in the 
formulation of information requests. These directives could be issued 
internally through staff memoranda and manuals or could be incoporated 
into formal published regulations, as some agencies have done." 
Incorporation into published regulations is preferable since it tends to lead 
the public to expect and solicit assistance when necessary. 

//. Requests for Identifiable Records 

A. Requirements as to Form of Requests 

The Freedom of Information Act only compels the honoring of requests 
for "identifiable" records. This requirement was added at the 
recommendation of the Senate Judiciary Committee to avoid an 
intolerable burden on the agencies." Its purpose is to enable government 
agencies to locate the records requested without unduly burdening agency 
operations. It is clear that "this requirement ... is not to be used as a 
method of withholding records."" 

Some agency regulations can be read to call for unnecessarily high 
standards of identification inconsistent with the policy and legislative 
history of the Act. One agency requires the requester to supply the date, 
addressee and "title or subject matter" of the record sought or to give an 
explanation for the failure to specify each of these matters. The 
regulations of some other agencies, although not as rigid, could be read to 
require with some inflexibility that the requester supply specific details 
such as date, author, addressee and topic." Other agencies require 

"£.f., Office of Economic Opportunity, 45 C.F.R. § 1005.7 (a) (1970); General Services 
Administration. 41 C.F.R. § 105-60.401 (1970). 
••S. Rep. at 2, 8. 
^Id. at 8. 

"Renegotiation Board. 32 C.F.R. § 1480.6(b) (1970). 
"Department of Health. Education, and Welfare. 45 C.F.R. § 5.51(c) (1970); Department 


requests for documents to be submitted on prescribed forms that call for 
such specific details." 

Those agencies that were interviewed do not insist on all these specific 
details, regardless of how their regulations read, where the information 
given by the requester is sufficient to identify and permit reasonably 
prompt location of the records. This may well be the general practice, or 
at least should be, in light of the statutory intent behind the requirement of 
identifiability. Even though agency practices may be reasonably flexible 
in this regard, apparently inflexible regulations or forms may mislead and 
discourage potential requesters and should be modified. This observation 
is applicable to what appears to be only a minority of the agencies. Many 
regulations are not misleading on this point; they provide that requests 
need only be specific enough to permit the finding of the records with 
reasonable effort.^** A regulation could properly go further than this and 
point out that certain specific information regarding dates, addresses or 
document number would be most helpful and should be given if available, 
as long as it were made clear that such information would not be essential 
where the record was otherwise adequately described. The regulations of 
the Internal Revenue Service and the Department of Transportation are of 
this latter type." 

Apart from the above objection, the requirement of a form tends to be 
contrary to the spirit of the Act. It appjears to be a kind of red tape tending 
to inhibit requests even though it may not have been designed for that 
purpose. This interpretation of the form requirement as a deliberate 
nuisance is reinforced when the form must be accompanied by an 
application fee that is non-refundable even if the agency does not produce 
the requested record." When requests are made by mail, the necessity of 
obtaining and filling out the form can create substantial delay.*' 

Although prescribed forms do serve some useful functions, the reasons 
favoring them do not outweigh their disadvantages. The use of a well- 
designed form may assist an applicant to sharpen up his request. This 

of Housing and Urban Development, 24 C.F.R. § I5-I3(a) (1970); Civil Aeronautics 
Board, 14 C.F.R. 310.6(b) (1970). 

"f.g,. Department of Commerce, 15 C.F.R. § 4.6(c) (1970). 

*'E.g.. Department of Defense, 32 C.F.R. § 286.7(c)(1) (1970); Department of 
Agriculture. 32 Fed. Reg. 10118, July 8, 1967; Farm Credit Administration, 12 C.F.R. 
§ 604.1 (1970); Federal Home Loan Bank Board, 12 C.F.R. 505.4(d) (1970). 

'»26 C.F.R. § 601.702(c)(4) (1970) (Internal Revenue Service); 49 C.F.R. § 7.43(d) 
(1970) (Department of Transportation). 

"Department of Commerce, 15C.F.R. § 4.6(c)(d) (1970) ($2.00); Department of Justice, 
28 C.F.R. §§ 16.3(a), 16.4(a) (1970) ($3.00). 

*'The author waited over two weeks just to receive a copy of a form requested from one of 
the departments. 


benefit may be obtained by making such a form available at the option of 
an applicant. Where a vague request requiring more precise details is 
received, the agency could send an optional form back to the requester to 
assist him. Some of the forms are also designed to direct and record 
agency action on the request. This advantage could easily be retained by 
designing a form for internal use only which could be attached to any 
written request upon receipt. 

The proposed guidelines permit an agency to insist that requests be in 
writing, as the regulations of some agencies now provide." Several 
agencies are currently very liberal as to the medium used in making 
requests, to the point of accepting them over the telephone." There is no 
reason to discourage this practice and create unnecessary paperwork for 
an agency that is willing and able to make the records available. However, 
where a telephone request is denied, the requester should be orally 
informed of the opportunity of making a written request which can then 
provide the basis for an appeal. 

One agency, the FTC, requires the requester to state in writing and 
under oath the nature of his interest in all but "public records" and the 
purposes for which they will be used." This requirement contradicts the 
clear congressional purpose in dropping the prior limitation in the Public 
information Act that information in government files be made available 
to "persons properly and directly concerned." One justification offered 
by the FTC for retaining this requirement is that practically all its records 
are "confidential" ones that fall into categories exempt from production, 
as in the case of investigatory files and the internal memorandums 
exemptions." However, the Commission's own regulations indicate that 
this explanation is not completely satisfactory. After listing records 
exempt under the Freedom of Information Act as "confidential" records 
to be made available only on a proper showing, it adds to this list "all 
records of whatever nature not clearly identifiable as public records."" 
"Public records" are those required by § 552(a)(2) to be indexed and 
made reaily available for public inspection and copying, notably agency 
opinions, policy statements and administrative staff manuals, and also all 
other records that the Commission decides to list and index as public ones, 
such as published reports on economic surveys.*' In effect the Commission 

"Department of Labor, 29 C.F.R. § 70.4(a) (1970); Department of Transportation, 49 
C.F.R. § 7.43(a) (1970). 

**E.g.. Civil Aeronautics Board, 14 C.F.R. § 310.6(a) (1970); Securities and Exchange 
Commission, 17 C.F.R. § 200.80(d) (1970). 

"16 C.F.R. § 4.1 1(b) (1970). 

^his explanation was given to the author in the course of an interview. 

"16 C.F.R. § 4.10(c) (1970). 

"16 C.F.R. § 4.9(e)(8) (1970). 


classifies non-exempt documents, such as unpublished reports, as 
confidential simply by not listing them as "public records". Although the 
Commission is considering removing the requirement that requests be 
made under oath, it should also drop the requirement of a written 
statement of interest and intended use. 

B. Treatment of Categorical Requests 

Broad categorical requests for documents have created some problems 
in the past and are a potential source of continuing difficulty. Some 
agency regulations refuse to honor any "blanket" or "general" 
requests." These regulations appear to reject all categorical requests, and 
in doing so they take a highly questionable position. They assume that a 
general request is not one for "identifiable" records under the Act. Some 
support for this view is found in the Attorney General's Memorandum, 
which interprets the Act as requiring the requester to describe "the 
particular materials" he wants and which concludes that "Congress did 
not intend to authorize "fishing expeditions.' "" The most vociferous 
critics of current agency practices under the Act would probably take 
sharp exception to the Memorandum on this point. The Nader study 
groups, for example, have attempted to use the Act for exactly the purpose 
of finding out what is going on in the various government agencies; in this 
sense their investigations are "fishing expeditions." 

The term "fishing expeditions," however, has certain connotations that 
may not be fully appropriate where government records are concerned. 
The term has been used to condemn broad investigations into private 
records not based on a showing of "probable cause" as required by the 
Fourth Amendment.^ The Freedom of Information Act clearly intends to 
remove any burden of showing probable cause or a special interest in, or 
need for information in government files. In so doing the Act proceeds on 
the premise that records in government files do not come within the 
interest of privacy that is at the heart of the Fourth Amendment. This 
premise seems reasonable in the case of a great many, perhaps most, 
records in government files. It is true, of course, that confidential 

"£.f.. Civil Aeronautics Board, 14C.F.R. § 310.6(b) (1970) (Blanket or general requests 
need not be honored and may be returned to requester); National Aeronautics and Space 
Administration, 14 C.F.R. § 1206.602(a) (1970); Department of the Navy, 32 C.F.R. 
§ 701.1(g)(3)(i)(a)(1970). 

"Ati'y Gen. Memo, at 292. 

"FTC V. American Tobacco Co., 264 U.S. 298, 305-06 (1924). The earlier proscription 
against "fishing expeditions" into private files was later relaxed by the Supreme Court in the 
case of administrative agencies conducting investigations within the scope of their regulatory 
powers. United States v. Morton Salt Co., 338 U.S. 632 (1950); CAB v. Hermann, 353 U.S. 
322 (1957). 


information relating to private individuals may be found in government 
records. This information should not be made freely available to the 
public. The Act recognizes the need to preserve the confidentiality of such 
government records by exempting from disclosure certain kinds of 
information, including that found in "personnel and medical files and 
similar files the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy."*' Preservation of p)ersonal 
privacy can be accomplished by the intelligent and sensitive application of 
these exemptions. If experience indicates that they are not sufficiently 
broad enough to preserve personal privacy, the Act can and should be 
amended. However, where a citizen seeks access to government records 
that do not contain private information, there is no reason to guard 
against the kind of "fishing expedition" repugnant to the values 
underlying the Fourth Amendment. 

It is significant to note that the Act does not use "specific", 
"particular" or any other word requiring that the records sought must be 
actually identified by the requestor. The records need only be 
"identifiable," i.e., capable of being identified on the basis of the 
information presented by the requester. As long as the records sought can 
be identified from the language in the request, this literal requirement of 
the Act is met. The Senate report also supports the acceptability of broad 
categorical requests by stating that the Act contemplates as an 
appropriate guideline the identification standards used for discovery in 
judicial proceedings." Rule 34 of the Federal Rules of Civil Procedure 
governs the examination and copying of documents in a judicial 
proceeding. At the time the Act was passed Rule 34 simply required the 
moving party to "designate" the documents requested. There was a split 
of judicial opinion on the question of how specific the designation had to 
be. Some cases adopted a narrow view and required each document to be 
specifically identified so that the party served could go to his files, pick out 
the particular document and say, "here it is."" The broader view would 
have permitted a party to designate documents by category as long as the 
category was described with reasonable particularity." 

The broad view is the better view. It is the one adopted by the Federal 

"See note 4 supra. 

«S. Rep. at 2. 

"United States v. National Steel. 26 F.R.D. 607 (S.D. Tex. I960); Lundberg v. Welles, 1 i 
F.R.D. 136 (S.D.N. Y. 1951); Stewart- Warner Corp. v. Staley, 4 F.R.D. 333 (W.D. Pa. 
1945); United States v. American Optical Co., 2 F.R.D. 534 (S.D.N.Y. 1942). 

"Scuderi v. Boston Ins. Co., 34 F.R.D. 463 (D. Del. 1964); Connecticut Mut. Life Ins. 
Co. V. Shields. 17 F.R.D. 273 (S.D.N.Y. 1955); State Theatre Co. v. Tri-States Theatre 
Corp.. 11 F.R.D. 381 (D. Neb. 1951); United States v. U.S. Alkali Export Ass'n., 7 F.R.D. 
256 (S.D.N.Y. 1946). 


Court of Appeals for the District of Columbia in one of the very few 
appellate court decisions interpreting this aspect of Rule 34 prior to its 
recent amendment." The broad view was also adopted by the 
commentators.** it is grounded on pragmatic considerations and 
recognizes that a person seeking information known to exist may not have 
sufficiently exact and definite knowledge to identify the specific 
documents in which it can be found. Under this view the description need 
only be "sufficient to apprise a man of ordinary intelligence what 
documents are required, and ... the court ... to ascertain whether the 
request has been complied with."" The newly amended Rule 34 has 
clarified matters. It expressly permits documents to be designated "by 
category." Designated categories must be described with "reasonable 
particularity." The proposed guidelines (B-2-b) adopt essentially the 
same standard in requiring the categories to be "reasonably specific." 

Examination of the reasons why some courts insisted on great 
particularity in designating documents under old Rule 34 reinforces the 
conclusions that the broad view is the appropriate one in the case of 
government documents. Three reasons emerge from the cases for the 
particularity requirement: 1) to guide both the party served with the order 
and the issuing court supervising compliance with it;'* 2) to prohibit a 
sweeping and indiscriminate search of a party's private papers — i.e., to 
prohibit "fishing expeditions" and their unjustifiable intrusion into 
privacy;** 3) to protect the party served from an unreasonable and 
oppressive burden.*" 

The first reason, that of securing compliance with a court order, does 
not apply as strongly in the case of a request for government records 
because the initial response by the official in charge of the records is not 
subject to a court order.*' As long as the official can reasonably be able to 

"Roebling v. Anderson, 257 F.2d 615 (D.C. Cir. 1958). 

»*2A Barron & Holtzoff (Wright ed.) § 796; Wright, Procedure in District Courts § 87 
(2ded. 1970). 

"Wright, supra note 56 at § 87. 

"United States v. American Optical Co. 2 F.R.D. 534 (1942). 

••Stewart-Warner Corp. v. Staley, 4 F.R.D. 333 (W.D. Pa. 1945); Archer v. Cornillaud, 
41 F. Supp. 435(W.D. Ky. 1941). 

••De Meulenaere v. Rockwell Mfg. Co., 13 F.R.D. 134 (S.D.N.Y. 1952); Wagner Mfg. 
Co. V. Cutler-Hammer Co., 10 F.R.D. 480 (S.D. Oh. 1950). (These cases involved subpoenas 
pursuant to Rule 45, which requires that documents be "designated" as does Rule 34; the 
standards applied in the case of both rules tend to be interchangeable.) 

•'Before a requester seeks a court order there would usually be an opportunity for the 
agency to suggest a refinement of the request, limiting it to certain Tiles, etc., in order to cure 
any serious problem of uncertainty. Where the agency can demonstrate the perils of 
uncertainty, a court of equity could refuse to enforce the request unless the requester 
stipulated to limitations that would remove unfair risks of good faith non-compliance. But 


decide whether a specific record comes within the request and can be 
reasonably certain that the examination of certain files will bring most if 
not all the requested records to light, the request is not too vague to be 
honored. The official can indicate the extent of his search to the requester 
and the latter can restate his request to include other files if he so desires. 

The second reason, the protection of privacy, is not at all applicable 
where the records requested have little or no chance of including 
confidential information about private individuals. With regard to 
protecting privacy, it is interesting to note that old Rule 34 cases 
condemning "fishing expeditions" usually attacked broad requests not 
only for the lack of precise designation but also for the failure of the 
moving party to establish "good cause" for examining the records.*^ 
Congress deliberately struck the parallel "direct and proper interest" 
requirement from the Public Information section of the Administrative 
Procedure Act. It is also interesting to note that amended Rule 34 has 
dropped the good cause requirement. 

Of particular relevance in applying judicial standards for the 
description of records to the Freedom of Information Act is the ability of 
a litigating party to learn of both the existence of private papers and their 
precise identification by depositions under Rule 26. Some cases taking the 
narrow view of old Rule 34 pointed out that the moving party can learn 
the precise description of documents relevant to his case by taking 
depositions." This, of course, is not true in the case of a party requesting 
documents under the Freedom of Information Act. This lack of discovery 
suggests that a party should be permitted by categorical request to ask for 
non-exempt government documents that he cannot be sure are in 
existence, a step that takes us closer to "fishing expeditions." 

The third reason for precise designation, the avoidance of unreasonable 
and oppressive burdens, applies in the case of government records. It is 
inconceivable that Congress intended to require compliance with sweeping 
categorical requests that would so burden agency operations as to disrupt 
their primary service to the public. However, the Freedom of Information 
Act does not expressly authorize rejection of requests because of the 
difficulties or costs that will be incurred by the agencies. The Act does 
expressly provide that the requester be charged for the services rendered to 
him." Aside from this practical limitation, any Congressional policy 

see Bristol-Myers v. F.T.C., 284 F. Supp. 745, 747 (D.D.C. 1968), rev'd. 424 F.2d 935 (D.C. 
Cir. 1970). 

"See footnote 59 supra. 

"United States v. National Steel, 26 F.R.D. 607 (S.D. Tex. 1960); Stewart- Warner Corp. 
V. Staley, 4 F.R.D. 333 (W.D. Pa. 1945). 

"5 U.S.C. § 552(a)(3) (1964 ed. Supp. IV.). 




limiting burdensome requests will have to be read into the Act. Since the 
clearly dominant purpose of the Act is to give ready access to government 
held information, any implied limitation must rest on an equally clear 
overriding policy. For this reason, any agency that rejects a categorical 
request because compliance would be unduly burdensome should be ready 
to demonstrate that the request calls for an improper diversion of agency 
time and resources from its primary responsibilities. 

As a practical matter, even extremely broad categorical requests can 
often be met without an undesirable diversion of agency resources if the 
requester is willing to accept gradual production of the records over a 
period of time. The proposed guidelines (B-2-b) would have the agency 
confer with the maker of a burdensome request. Through such conferences 
a compromise calling for refinement of the request or a relaxed 
production schedule could be worked out to the mutual benefit of both 
the agency and the requester. 

The few cases under the Act dealing with categorical requests hold that 
they must be honored if the agency can readily ascertain what records 
come within their scoj)e. The cases also suggest that such requests cannot 
be rejected because of the burdens and difficulties of collection they 
impose on the agency. However, a leading case can be read to suggest that 
at some point a request can become so burdensome that an agency can 
refuse to divert resources to handle it. 

Initially, the Federal District Court for the District of Columbia looked 
with disfavor on broad categorical requests, in Matonis v. Food and Drug 
Administration, Civ. Act. No. 479-68, March 19, 1968, the court refused 
to give the plaintiff relief where she had asked "for all records . . . 
pertaining to the review of claims of the effectiveness of drugs for human 
use containing rutin, quercertin, hesperidin or biflavonoid." The court 
found that the records sought were not sufficiently identified. 

In Bristol-Myers v. FTC. 284 F. Supp. 745 (D.D.C.1969) Judge 
Holtzoff refused to enforce a general request for records relating to certain 
analgesic medicines and to a proposed rule relating to them. At one point 
in his opinion Judge Holtzoffs reasoning was reminiscent of that used by 
courts requiring specific designation of documents pursuant to old Rule 
34; he referred to the possibility of a court order and the necessity to know 
with certainty what specific documents were requested.** However, his 
main concern was over the disruptive effects that compliance with the 
request might entail. He believed the request was apt to contain many 
records exempt from disclosure under the Act, and his opinion strongly 

«284 F. Supp. at 747. 

493-361 O - 73 - 10 


implies that considerable time of high level officials would be consumed in 
screening out exempt records that should be kept confidential." 

On appeal the decision in Bristol-Myers was reversed." The test used by 
the Court to determine the propriety of the request was whether the sought 
for records could be ascertained and located from the description given. 
Subsequently, this test was applied in Wellford v. Hardin, 315 F. Supp. 
175 (D. Md. 1970) to require agency compliance with an allegedly 
burdensome request. The plaintiff had asked the Department of 
Agriculture to produce letters of warning sent by the Compliance and 
Evaluation Staff of the Consumer Marketing Service to non-federally 
inspected meat or poultry processors suspected by the staff of engaging in 
interstate commerce. The Department rejected this request on the ground 
that collection of the records would require the search of many files and be 
extremely burdensome. The court interpreted this reason for rejection as 
an admission that the agency knew exactly what was being sought and was 
complaining only about the effort that would have to be made to collect 
the documents. The court went on to say:** 

The fact that to find the material would be a difficult or time- 
consuming task is of no importance [in determining identifiability]; 
an agency may make such charges for this work as permitted by 
statute. To deny a citizen that access to agency records which 
Congress has specifically granted, because it would be difficult to 
find the records, would subvert Congressional intent to say the least. 
Therefore, this court finds the defendant's assertion that this 
requested information is not an "identifiable record" within the 
meaning of the stature to be totally without merit. 

The Wellford opinion does not consider the possibility that some 
categorical requests might be so burdensome that compliance with them 
would put an undesirable strain on efficient administrative operations. No 
judicial decision has dealt squarely with this question. However, the 
decision of the Court of Appeals in the Bristol-Myers case could be 
construed as giving some recognition to the possibility that some 
categorical requests would place so great a burden on agency operations 
that they could be rejected. 

In that case the court broke down the broad request into two parts. The 
request had sought "the extensive investigation . . . accumulated 
experience and available studies and reports" referred to as the basis for 
the proposed FTC rule in the notice announcing it. In addition, the 

»Id. at 746-47. 

•'424 F.2d 935 (D.C. Cir. 1970). 

•»315F. Supp. at 177. 


plaintiff had asked for records pertaining to the effects of analgesics as 
well as records pertaining to the accuracy of the plaintiffs claims of 
benefits derived from its own products. The circuit court held that records 
containing the materials relied on by the Commission in promulgating the 
proposed rule and referred to generally in the notice of the proposed 
rulemaking proceeding were adequately identified. It did go on to indicate 
that the records relating to the effects of analgesics generally and the 
accuracy of the plaintiffs claims for its own products might not all be 
encompassed in the materials pertaining to the proposed rulemaking. If 
this were the case, the court said, "the claim of failure to meet the 
identification requirement may be more plausible." It directed the trial 
court to consider this part of the request separately on remand to 
determine if it in fact did pose problems of adequate identification. 

In treating the two parts of the request differently the court may very 
well have had in mind the practical difficulties in locating and collecting 
responsive documents rather than interpretive difficulties in ascertaining 
which ones would come within the request. That part of the request calling 
for records relating to the effects of analgesics generally does not seem to 
pose any difficult problems of interpretation. But the responsive records 
could be spread throughout a large number of files, and the Commission 
may never have had occasion to collect them for its own purposes. 
Because of the burden in assembling documents never before collected, 
this part of the request could in fact create far greater difficulties than the 
part calling for the materials that the Commission had so recently studied 
and collectively referred to in promulgating the proposed rule. 

Agency practices also reflect an interpretation of the Act that treats 
categorical requests as ones for "identifiable" records where it is practical 
to locate and collect the materials requested. Some agency regulations call 
for the honoring of a categorical request if it will not entail an 
unreasonable burden.** From information gained in interviews it also 
appears that even agencies with regulations fiatly rejecting all general 
requests usually grant categorical ones that do not cause undue 
interference with agency operations. This approach, which is embodied in 
the guidelines, leaves much to the discretion of the agency. This would be 
true even under a rule providing that only clear and substantial 
interference with an agency's primary operations will warrant the 
rejection of a categorical request. In the case of a potentially most 
burdensome request an agency can go out of its way to minimize costs and 

•Those regulations honoring requests couched in terms that permit location of records 
with no more than a reasonable amount of effort (see note 38 supra) in effect recognize 
categorical requests as ones for "identifiable records" as long as they can be located without 
imposing an undue burden on the agency. 


difficulties while giving the requester full access to the information he 

Whether it will do so depends on a number of factors. For instance, if 
an agency believes it can entrust the entire contents of numerous files to a 
particular requester, it will grant very liberal access to records. 
Accordingly, an agency is apt to grant a reuqest from a scholar to 
examine all the documents relating to a particular topic covering the ten- 
year period from 1920 to 1930 if the records requested can be located in 
readily identifiable files. With relatively little effort the agency can 
produce the files from storage and present the requester with a mass of 
documents to examine. He, rather than agency personnel, will have to go 
through the files to find the specific documents that interest him most. 
There will be little diversion of staff time and no disruption of files 
currently in use. Nor would there be much concern that the researcher 
might come across records of a confidential nature that are exempt from 
production under the Act. Investigoatory files would have long been 
closed, internal memoranda would not comprimise existing agency 
programs or personnel and there would be little risk of revealing trade 
secrets or currently confidential personal or commercial information 
obtained from private citizens. 

A request calling for many documents that are located in current files 
can present substantial difficulties in some cases. First of all, the general 
request may relate to documents that are scattered through a large 
number of actively used files. It may be difficult to determine which files 
must be examined to find all documents. Where the number of documents 
potentially subject to the request is great, it may be unduly burdensome to 
exjDect agency staff to extract the documents responsive to the general 
request from these files. The alternative of turning over the files to the 
requester for his perusal may be out of the question, particularly where 
there is a probability that exempt and confidential material may be 
located in these files. 

In some cases an agency will be able to tell from the nature of even 
current files that their contents most likely will not include exempt 
information that should be kept confidential. In such cases some agencies 
permit the requester to search the files himself in order to locate the 
specific documents that are of interest to him. However even in such a case 
the agency may take some precuation to insure that important records in 
the file are not removed or destroyed. For example, a clerk from the 
agency may be stationed in the same room as the requester when a 
contract file is made available for examination. 

In some cases the agency may conclude that it must have a 
knowledgeable member of the staff screen the file to remove exempt 


records from it before turning it over to the requester. Some agencies 
appear to take a rather strong stand on this point, insisting on prior 
examination of any file that might possibly contain exempt material. They 
point out that some material must be kept confidential by statute and that 
officials who disclose such material are subject to criminal sanctions.^" 

The circuit court's decision in the Bristol-Myers case also dealt with the 
problem of screening out exempt records in complying with a broad 
categorical request. It rejected the trial court's approach of denying an 
entire request because of the likelihood that it included some exempt 
information. Instead it required the trial court to pass on the exempt 
status of each particular record sought to be withheld. Records coming 
within the broad request not found to be exempt were to be produced. 
Here again arises the question of whether at some point an agency can 
reject a broad categorical request because the screening out of exempt 
records would be unduly burdensome and disruptive. 

At least one department has refused a broad categorical request by a 
"study group" because of the burden of screening out confidential records 
exempt under the Act and has asked the requester to indicate with greater 
particularity the documents that he was seeking. Agency action of this 
sort appears to have inspired the charge that exempt records are 
commingled with non-exempt ones to insulate the entire file from public 
scrutiny. The clear implication is that the agency has done his 
deliberately. It is not so clear that the implication is justified in all cases of 
commingling. It is possible that a rational filing system, designed 
primarily for efficient internal use will lead to a substantial commingling 
of exempt and non-exempt records. 

It has been recommended that non-exempt material be kept in separate 
files from exempt material. The shortcomings of this approach are 
discussed within in connection with the guideline on commingling (B-3). 
The requirement that refusal of a categorical request must specify reasons 
for denial, as included in the proposed guideline (B-2-b), may provide a 
less burdensome and more effective way of dealing with improper 
commingling than the policy of systematic segregation of exempt and 
non-exempt materials. As Professor Davis has recommended, one means 
of structuring discretion to insure its more responsible exercise is to 
require that written findings and opinions accompany agency decisions.^' 
Elaborate opinions and findings need not accompany refusals of 

'•E.g.. 18 U.S.C. § 1905 (1964 ed.) (criminal penalties for the improper revelation of 
trade secrets or confidential economic or other data by government officials); 49 U.S.C. 
§ 322(d) (1964 ed.) (criminal penalties for improper disclosure by ICC agent of information 
obtained during an official examination of private papers). 

"K. Davis, Discretionary Justice 103-06 (1969). 


burdensome categorical requests in order to achieve the salutary benefits 
of such an approach. A summary explanation of the kind of search that 
would be required to meet the request and of the kinds of difficulties that 
could be encountered should be sufficient. The explanation might identify 
the kinds of files in which records responsive to the request would be found 
and the difficulty involved in collecting them from these diverse sources. 
Where an agency unjustifiably rejects a broad request on the ground it 
would include many exempt records, an agency might have a difficult time 
explanining why it would be too burdensome to screen out possibly 
exempt records if the explanation included even a minimum of detail. The 
requirement of an explanation should also reveal blatant examples of 
improper commingling. In a clear case it might provide the basis for 
judicial relief in an action brought under the Act. 

It should be recognized, however, that no procedures can guarantee an 
exercise of discretion that will accord absolutely equal treatment in all 
cases. There will be situations involving obviously burdensome requests in 
which agencies will feel it is in the public interest to make an extra effort. 
This means that in practice decisions may turn upon the different interests 
that requesters have in the records, it would be very difficult to capture 
these distinctions in any formula. None of the agencies interviewed 
believed that discrimination should be made between requesters where 
non-exempt records were involved. They referred to the difficulty of 
making distinctions that could withstand justification in light of a free and 
open information policy. But it is hard to believe that the importance and 
seriousness of a request will not carry weight in deciding how far an 
agency will go out of its way to accommodate it. The distinctions now 
being made by agencies, although somewhat imponderable, may be 
justified in many cases. An agency would be well within its discretion to 
reject a burdensome categorical request because of the requester's 
apparently minimal and casual interest in the matter. A clear case in point 
would be a sweeping request made by a high school student in connection 
with a civics term paper. One fear expressed by agency officials was the 
possibility in such a case that a requester might never bother to make use 
of the records collected for him. 

One technique commonly used to discourage frivolous categorical 
requests is to have the requester bear the full costs of searching for the 
records and requiring prepayment of the estimated charge. The fee might 
even include an amount for the staff time involved in screening out exempt 
records where a great deal of professional time would be used for this 


///. Partial Disclosure of Exempt Records and Files 

The Freedom of Information Act can be read to permit an agency to 
withhold a record because some small part of it contains exempt 
information." Although the Act expressly permits an agency to delete 
identifying details in publishing and making available opinions, 
statements of policy, interpretations, or staff manuals and instructions," 
no similar provision exists with regard to production of records. However, 
the language providing for exemption from disclosure does not speak of 
records but refers to "matters."'^ The word matters suggests that only the 
exempt information can be withheld rather than the entire record itself. 
But the specific exemption relating to inter-agency records refers to 
"memorandums or letters."" In discussing most of the exemptions, both 
the Senate and House reports and the Attorney General's Memorandum 
refer to "records" and "matters" interchangeably. In addition, the sixth 
and seventh exemptions relating to personnel and investigatory files 
respectively can be read to exclude from the Act both exempt and non- 
exempt records within the files." The Attorney General's Memorandum 
appears to adopt this interpretation." 

Although the withholding of a twenty page record that has exempt 
information on only one or two pages may be within the literal scope of 
the Act, it is clearly contrary to the free and open information policy 
behind it. in recent decisions the Federal Court of Appeals for the District 
of Columbia has looked to this policy in remanding two cases with 
directions to the trial court to order production of records containing 
trade secrets or confidential commercial or financial matters if the exempt 
information could be effectively deleted.^* Relying on one of these cases, a 
lower court has ordered an agency to produce records containing exempt 
material." The court held that the Act authorizes only the deletion of the 
exempt material, not the withholding of the entire records. 

The proposed guidelines follow the line taken by these cases, requiring 
all agencies to produce records containing exempt information after 
appropriate deletions have been made. (B-3) Adoption of the guidelines by 
regulation would strengthen the case for granting judicial relief ordering 

"Davis, supra note 5, at 799. 
"5U.S.C. § 552(a)(2)(1964ed. Supp. IV). 
'*5U.S.C. § 552(b)(l964ed. Supp. IV). 
'»5U.S.C. § 552(b)(5)(1964ed. Supp. IV). 
''*See Davis, supra note 5, at 798. 

^''Att'y Gen. Memo, at 305-06. See also discussion at note 81, infra. 
"Bristol-Myers v. F.T.C., 424 F.2d 935, 938-939 (D.C. Cir. 1970); Grumman Aircraft 
Engineering Corp. v. Renegotiation Bd. 425 F.2d 578, 582 (D.C. Cir. 1970). 
'•Wellford v. Hardin, 315 F. Supp. 768 (D.C. Cir. 1970). 


production of records whenever deletion of the exempt material is feasible. 
The courts would most likely regard such a regulation as binding on the 

Adoption of the guidelines would also help with the commingling 
problem since they require an agency, in response to a request, to pick out 
and produce non-exempt records in a file. Here again, adoption of the 
guideline would tend to ensure judicial enforcement of such a policy. 
However, a requester can probably get an order requiring production of 
non-exempt records within a file even without the guidelines.*' 

The proposed guidelines do not go as far as other proposals that would 
require non-exempt material to be kept in separate files from exempt 
material. The logical extension of these more ambitious proposals appears 
to be that all subject files should be broken down physically into two parts 
with one folder containing records open to the public and the other 

•"General Services Administration v. Benson, 415 F.2d 878, 880 (9th Cir. 1969). This case 
is discussed in the text infra at notes 1 17-120. 

"The conclusion that the Act requires production of a file from which exempt records can 
be removed rests on a reading of § 552(a)(3) which requires "identifiable records" to be 
made available on request and § 552(b) which exempts from this requirement specified 
"matters." These sections read together would seem to forbid an agency from withholding a 
set of records identified by file simply because one or two that could be easily separated from 
the rest were exempt. (For an alleged agency refusal to segregate easily identifiable exempt 
records from a requested file see Nader, supra note 16, at 1 1 ftnte. 33(i).) This interpretation 
should apply even in the case of the seventh exemption which applies to "personnel and 
medical files and similar files the disclosure of which would constitute a clearly unwarranted 
invasion of privacy." The modifying clause regarding unwarranted invasions of privacy 
could be read to exempt only those parts of the files that would constitute the intrusion into 
privacy. Both the Senate and House reports seem to read the exemption in this manner and 
they appear to extend this qualification to personnel and medical files as well as "similar 
files" because both would exclude from the exemption "facts concerning the award of a 
pension or benefit." S. Rep. at 9; H. Rep. at 1 1 . 

The Attorney General's Memorandum reads as though the entire contents of personnel 
and medical files are exempt; it states that the following need not be produced: ". . . all 
personnel and medical files, and all private or personal information contained in other files 
which, if disclosed to the public, would amount to a clearly unwarranted invasion of the 
privacy of any person. . ." 20 Ad. L. Rev. at 305. 

Where investigatory files are involved, however, the position advanced in the text does not 
appear to be applicable since the exemption by its terms requires production of only those 
parts of the file "available by law to a private party." As a matter of grammatical 
construction the exemption includes the remainder of the file. Besides, it is difficult to 
formulate a standard to separate out other supposedly non-exempt records from the file in 
addition to those made "available by law." The main purpose of the exemption is to protect 
a government investigation from premature disclosiire (see Sen. R. at 8); the application of 
this broad objective to particular records in an investigatory file does not suggest judicially 
reviewable standards. It would seem necessary to leave the matter of disclosure, in the case of 
at least active files, to the unqualified discretion of the agencies except for the non-exempt 
items "available by law to a private party." 


containing exempt ones closed from view. This method of segregation 
presents an impossible task if it is to include the rearrangement of 
material in existing files. Even if it is to be limited to the filing of new 
material, it poses a formidable task. New additions to the files would have 
to be evaluated to determine whether they were legally exempt. The 
amount of staff time that would be consumed in filing could result in 
serious interference with more important work in some offices. 

In all offices it would impose a burden extremely hard to justify because 
the procedure tends to be self-defeating and could result in more records 
being withheld as exempt than would occur without segregation. Although 
the Act permits exempt records to be produced at the agency's discretion, 
practically all exempt records would be mechanically inserted into the 
closed files; only in the clearest cases where assertion of the exemption 
would serve no valid purpose would an exempt record find its way into the 
open file. Accordingly, records that an agency might make available in 
response to a specific request after careful evaluation would escape a 
categorical one. Also, in the case of any doubt as to the exempt status of 
certain documents, they would automatically be filed in the closed folder. 
It might be urged that even so there would be a net gain because all the 
documents in the open files would now be more accessible to an 
investigator making broad inquiry into agency operations. However, if the 
main reason for this burdensome procedure is the circumvention of 
deliberate efforts made to commingle embarassing records with exempt 
ones, as is intimated by some of the proponents of this procedure, it is 
doubtful that it will solve such a problem. Determined resisters of freedom 
of information would be ingenious enough to raise doubts in their own 
mind as to the exempt character of embarassing records and would always 
be so scrupulous as to put these doubts to rest by dropping the 
troublesome records into the closed exempt file. 

/ V. Time to Reply to a Request 

Delay in responding to the requests for records can result from many 
causes. Some of them constitute legitimate reasons; others are 
questionable and reveal a generally unsympathetic attitude toward 
information requests. An improper reason for delay is the very low 
priority that may be given to requests for records by the busy 
administrator and his staff. Where this attitude prevails, such requests 
may be put aside for unreasonably long periods of time, perhaps until 
something prods the agency into action, such as a follow-up letter by the 
requester. An unfortunate but natural tendency may develop to give better 
and quicker service to persons having well established cordial contacts 
with agency officials than to some unknown citizen. At least one staff 


member of an agency admitted during an interview that requests from 
prominent national and Washington law firms would ordinarily receive 
prompter attention than ones from out-of-town persons unknown to the 
agency. A deadline will act as a prod that clearly indicates the relative 
importance of freedom of information matters and encourage uniform 
treatment of all requests. 

Another reason why an agency may be inclined to drag matters out is 
the hope that the passage of time will exhaust the requester's interest in 
documents that the agency is reluctant to produce. The harshest critics of 
agency practices have charged that delay is frequently used as a deliberate 
stalling tactic. They claim that after delaying any kind of reply for a 
substantial period of time some agencies reject the request for a reason 
that should have been apparent at the time it was received." Sometimes, it 
is charged, the request is not denied outright but is deemed inadequate for 
lack of specificity, with the result that final action on the unpopular 
request is delayed while the requester attempts to reformulate it with more 
particularity.*' The Consumers Union case is an example of protracted 
dealings between the requester and the agency in a case where it was 
subsequently found that the records were being withheld improperly. 

Factors other than dilatory tactics may explain the delay in arriving at 
a final, judicially reviewable decision in some cases. The request may have 
raised knotty legal issues or serious questions of policy that required 
measured deliberation by the agency, or the requester may have opted to 
negotiate with the agency rather than force a showdown as soon as 
possible. Whatever the actual reasons in particular cases, instances of 
delay are open to the interpretation of deliberate evasion and invite 
procedures to minimize such a possibility, particularly when the Act 
specifies that requested records be made "promptly available."**^ 

The proposed guidelines attempt to translate the prompt response 
requirement of the statute into a deadline that is generally workable for 
the agencies. At first, a seven-day deadline was considered. There was 
divided opinion among the agencies interviewed concerning the tightness 
of a seven-day deadline for the initial response to a request. The majority 
believed that it was too confining unless accompanied by a very broad 
escape clause. There was broader agreement on a ten-day deadline with a 
relatively easy escape clause. The proposed guidelines adopt this deadline 
for the initial response. (B-4) Some agency regulations have already 
adopted a ten-day guideline for either responding to or acknowledging a 

"Nader, supra note 16, at 8. 

"5 U.S.C. § 552 (a)(3) ( 1964 ed. Supp. IV). 

"f.g., Defense Supply Agency, 32 C.F.R. § 1260.6(b)(3) (1970). 


The escape clauses specified in the guidelines attempt to include the 
substantial and justifiable reasons put forward by the agencies as 
recurring causes for delay. Once the agencies have been given adequate 
time to deal with these specified difficulties, ten working days should be 
enough to deal with an uncomplicated routine request. With such a 
deadline the requester may still have to wail about three weeks for a reply 
if mailing time is taken into account. 

Turning to the escape clauses, one recurrent justification put forward 
for delay was that requests are frequently sent to an office that does not 
have the records in its charge. Any tight deadline would have to take this 
factor into account by tolling the period for response until such time as the 
request is received by the proper office. However, the tolling period should 
be limited. The office receiving the misdirected request should forward it 
to the prop)er office within ten days. At the same time it should also notify 
the requester of its action, something that can be done quickly by means 
of a standard form. 

Once the proper office receives the request, it must act within ten days 
unless it reports to the requester that one of five specific reasons renders 
the deadline inapplicable. The first four reasons all relate to rather definite 
situations: 1) the physical location of records elsewhere; 2) a request for 
many records; 3) a categorical request and 4) a tracer search. When the 
agency invokes one of these reasons, it must also give some indication of 
when the records will be produced. Taken together, the specification of 
definite reasons for delay and the self-imposition of a new deadline should 
tend to limit the possibility of abuse, particularly where the first, second 
and fourth reasons are concerned; an unreasonably extended deadline 
should be more or less self-evident in these cases. In most cases the 
amount of time required to respond to a categorical request will depend on 
factors known only to persons familiar with the constitution of an 
agency's files. With regard to this escape clause, extended deadlines must 
be left primarily to the agency's responsible exercise of discretion. 

The proposed guideline does enable requesters to utilize the appeal 
machinery within an agency to remedy improper delays connected with 
these first four reasons for extended deadlines. Where lower level officials 
impose unreasonable extensions or do not meet an applicable deadline, 
including the initial one of ten days, the requester can petition the officer 
in charge of appeals to take corrective action immediately.** If the officer 

"Where lower level officials have not even acknowledged the request within the initial ten 
day deadline, the appeals officer can require that "appropriate steps" be taken. The 
"appropriate step" may be the sending of an acknowledgement and the self-imposition of an 
extended deadline where the request falls within one of the five groups which permit of this 


fails to do SO, the requester can seek judicial relief, a possibility discussed 
more fully below. 

Delay caused by the necessity to evaluate the possibly exempt status of 
the records requested, the fifth and last reason for extending the ten-day 
period, could prove troublesome. There might be great temptation to 
protract unduly the consideration given to the matter of exemption, 
particularly in the case of an unwelcome request. The guidelines propose 
to deal with this situation by giving the requester the ability to accelerate 
the administrative process when he encounters this difficulty. If an agency 
fails to meet an extended deadline adopted to consider the matter of 
exemption the requester can petition the appeals officer to take 
appropriate action. The action must be taken within ten days. Failure to 
do so permits the requester to treat his request as denied and to file an 
appeal. (B-6-d). if the agency adopts an unreasonably extended deadline 
and the appeals officer does not remedy the situation upon petition by the 
requester, the latter can treat his request as denied and file an appeal after 
a reasonable period of time has elapsed from the time of his initial request. 
(B-6-d). Permitting the requester to challenge an extended deadline as 
unreasonable by filing an appeal is necessary in the first instance if he is to 
be able to take the initiative in moving the agency. The Department of 
Transportation's regulations similarly permit a requester to push for final 
action on the appeal level when the initial decision has been unreasonably 

The guideline does provide some sort of limit in the case of extended 
deadlines adopted to consider the matter of exemption. A ten day period is 
set as the usual limit. This should provide sufficient time for consultation 
with legal staff even where a close question is involved. A more extended 
deadline would permit the continuation of unnecessarily time-consuming 
procedures now followed by some agencies that refer all cases of initial 
denials involving any exercise of discretion to the highest level within the 
agency. This creates unnecessary delay since the requester will have to 
retraverse the same route on appeal if an initial denial is forthcoming. 
Officials below the top rank should be able to make relatively prompt 
initial decisions in the great majority of cases, even when they exercise 
some discretion in deciding whether to assert an exemption. It is 
interesting to note that the first intra-agency appeal to the executive 
director of the Civil Aeronautics Board must be disposed of within seven 
working days after receipt,** yet this appears to be the first stage at which 
there is a significant exercise of discretion in deciding whether to assert a 
legal exemption. 

"49C.F.R. § 7.71 (b)(1970). 
"14C.F.R. § 310.9(d) (1970). 


The guidelines do recognize that there will be circumstances in which 
more time than two weeks will be needed to pass on difficult questions; but 
it expresses the presumption that this will not be the usual case. Where a 
requester challenges an extended deadline in excess of ten additional 
working days by filing an appeal after the passage of what he considers to 
be a reasonable time, the burden rests on the agency to come forward and 
specify "special circumstances" that warrant the additional delay. The 
kind of special circumstances contemplated would be exemplified by a 
categorical or similarly broad request that raises several difficult legal or 
policy questions, if the requester wishes to challenge the adequacy of the 
special circumstances advanced by the agency he could reassert his 
intention to stand by his appeal. If he does this and the agency does not 
take final action within the next twenty working days, he could bring suit 
in the federal district court under § 552(a)(3) to compel production of the 
record.** One of the defenses that the agency could raise would be the 
prematurity of the suit because the petitioner has not waited to exhaust his 
administrative remedies completely, and this would raise the issue of 
whether the extended deadline in excess of ten days was reasonable or not. 

The above discussion suggests that agency regulations based on the 
proposed guideline might make judicial relief more accessible in cases of 
improper delay. Courts have in some cases required agencies to follow 
procedures set out in their own regulations even when they have not been 
mandated by statute or standards of constitutional due process.*" Some 
have not only set aside agency action taken without observance of self- 
prescribed procedures, they have even issued orders in the nature of 
mandamus to compel compliance with them.*' However, courts have on 
occasion refused to treat self-imposed time limitations as binding on 
agencies even when they have been formalized in regulations.*^ 

"•As a practical matter an agency need only come up with an initial reply within the twenty 
day period to deter the requestor from filing suit at the end of it. If the reply should be a 
denial issuing from the officer in charge of the initial request rather than the officer in charge 
of appeals, the cautious requestor would reassert his appeal at this point to establish without 
question his exhaustion of administrative remedies. 

••Yellin v. United States, 374 U.S. 109 (1963); Vitarelli v. Seaton, 359 U.S. .535 (1959); 
Service v. Dulles, 354 U.S. 363 (1957); Peters v. Hobby, 349 U.S. 331 (1955); Accardi v. 
Shaughnessy, 347 U.S. 260 (1954). 

•'Smith V. Resor, 406 F.2d 141 (2d Cir. 1969). The Ninth Circuit has indicated in the 
recent case of General Services Administration v. Benson, 415 F.2d 878, 880 (1969) that it 
will hold an agency bound by its own substantive regulations implementing the Freedom of 
Information Act even when they may go beyond what the law requires. For discussion of this 
case see the text infra at notes 108- 12. 

•*M.G. Davis & Co. v. Cohen, 369 F.2d 360, 363. (2d Cir. 1966). (Refusal by court to 
regard proceedings instituted after time limitation prescribed by agency regulation as in 
excess of agency's jurisdiction so as to warrant injunction that would terminate them prior to 
their completion.) 


Nonetheless, one would expect the courts to enforce the time limitations 
adopted pursuant to the proposed guidelines, not simply because they 
would be embodied in formal regulations, but because they give precise 
form to rights implied by the Freedom of Information Act and other laws. 
Even if an agency did not adopt implementing regulations, a requester 
encountering unreasonable delay could obtain relief in the courts. The 
proposed guideline would not give rise to a remedy otherwise unavailable; 
it would do no more than make clearer, and perhaps accelerate, the time 
at which that relief might be sought. 

The following statutes provide a basis for judicial relief to correct 
agency inaction on a request for records: 1) 5 U.S.C. § 552(a)(3) which 
provides that identifiable records will be made "promptly available" to 
any person and that federal district courts have jurisdiction "to order the 
production of any agency records improperly withheld from the 
"complainant"; 2) 28 U.S.C. § 1361 which authorizes federal suits in the 
nature of mandamus to compel government officials to perform a duty; 3) 
5 U.S.C. § 555(b) which requires an agency "to conclude a matter" 
before i-t "within a reasonable time"; 4) 5 U.S.C. § 706(1) which 
authorizes a reviewing court to "compel agency action unlawfully 
withheld or unreasonably delayed." 

Since delay in coming to a decision results in a literal "withholding" of 
a record for the period of time necessary to make a decision, it can be 
argued that unnecessary delay results in a record being "improperly 
withheld" within the meaning of § 552(a)(3). This argument for judicial 
relief is reinforced by the statute's requirement of a prompt decision. 
Reliance on § 552(a)(3) alone, however, presents some difficulties. The 
word "withholding" can be interpreted to require an actual refusal to 
grant access to the record. Such a reading is most consistent with the 
legislative history of the Act as interpreted by the Attorney General's 
Memorandum, which finds in the House Report the implication that 
court review "is designed to follow final action at the agency head level."" 
However, unless a requester can obtain some kind of judicial relief where 
an agency refuses to make any decision, then all an agency need do to 
avoid judicial review entirely is to procrastinate interminably when 
presented with a distasteful request. It can be urged persuasively, then, 
that the right to obtain judicial relief in cases of delay is implied from the 
express judicial remedy provided in § 552(a)(3) in cases of denial.*^ 

Even if § 552(a)(3) by itself does not afford a remedy in cases of delay, 
it can provide the basis for seeking relief in the nature of mandamus under 
28 U.S.C. § 1361. This latter statute confers jurisdiction on federal 

**Ally Gen. Memo, at 296. 

•^Environmental Defense Fund v. Ruckelshaus, J^.2d (D.C. Cir. 1970). 


district courts to compel a federal agency to perform a duty owed the 
plaintiff. Section 552(a)(3) establishes a clear duty on government 
agencies to produce non-exempt records on request. For the most part the 
duty is ministerial. The only exercise of discretion that could ever arise in 
cases involving non-exempt records would come about in the 
determination of their non-exempt status. With regard to many requests, 
perhaps most, the non-exempt character of the records is so clear that 
mandamus seems particularly appropriate.** Even where a difficult 
question of interpreting an exemption arises, there is room for mandamus, 
at least to compel the agency to take expeditious action. By expressly 
requiring that the agency make records "promptly available," 
§ 552(a)(3) establishes the duty that an agency handle a request for 
records without unreasonable, perhaps without unnecessary, delay.** A 
requester can enforce this duty even where difficult legal questions are 
involved. It is well settled that mandamus will lie not only to compel 
ministerial acts but also to compel the exercise of discretion; what it may 
not be used for is to determine or influence the exercise of that discretion." 
In enforcing § 552(a)(3), mandamus can go beyond simply ordering the 
agency to make a prompt decision. It should be available to compel 
production of any non-exempt record, including one whose non-exempt 
status is not readily apparent. This point will be explored more fully 

Another basis for a judicial remedy is found in 5 U.S.C. § 555(b) 
which carries forward in slightly different language the requirement 
originally found in § 6(a) of the Administrative Procedure Act that an 
agency act with "reasonable dispatch." The current forumulation 
provides that "within a reasonable time, each agency shall proceed to 
conclude a matter presented to it." 5 U.S.C. § 706(1) affords a judicial 
remedy to enforce this provision in language identical to that used in the 
original formulation of § 10(e) of the Administrative Procedure Act: 
"The reviewing court shall compel agency action unlawfully withheld or 
unreasonably delayed." In the leading case of Deering Milliken v. 
Johnson. 295 F.2d 856 (4th Cir. 1961) the court held that § 6(a) of the 

••Skolnick v. Parsons, 397 F.2d 523 (7th Cir. 1968). In this case the court took the position 
that a suit in the nature of mandamus brought pursuant to 28 U.S.C. § 1361 toenforce legal 
rights arising under S U.S.C. § 552 (a)(3) stated a good cause of action. 

••Congressional intent to create a legal right to have one's requests for records handled 
expeditiously is evidenced not only by the express requirements that records be made 
available "promptly" but also by the provision that suits brought to compel their 
production take precedence on the district court's docket. 5 U.S.C. § 552 (a)(3) (1964 ed. 
Supp. IV). 

"National Anti-Vivisection Society v. K.C.C.. 234 K. Supp. 696 (N.D. 111. 1964); Indiana 
& Michigan Elec. Co. v. F.P.C., 224 F. Supp. 166 (N.D. Ind. 1963). 


Administrative Procedure Act gave rise to a legal right to have agencies 
act with "reasonable dispatch" and that this right could be enforced in an 
action seeking relief pursuant to § 10(e) of the Act. Writing for the court. 
Judge Haynsworth dealt with the problem presented by § 10(c) of the 
Administrative Procedure Act (now codified in 5 U.S.C. § 704), which 
states that "final agency action" is subject to judicial review. He found 
that "final agency action" in the usual sense of these words was not 
necessary where an agency had been considering a matter for an 
unreasonably long period of time. Since violation of § 6(a) gave rise to a 
"legal wrong," it was necessary to provide judicial relief even where an 
agency had not acted finally; otherwise the "legal wrong" suffered would 
not be subject to an adequate remedy.** 

The petitioner in Deering Milliken was threated with substantial injury 
because of the delay. Unfair labor practice proceedings had been in 
progress for more than four years when the petitioner brought suit in 
enjoin the NLRB from remanding the case to the trial examiner for a 
second time in order to reopen an issue already litigated. Not only would 
petitioner have incurred additional expense and inconvenience if the 
proceeding were to be drawn out any longer, the continuing uncertainty of 
outcome would have had a sharp dollars and cents impact because 
damages would have continued to accure throughout the proceeding. It 
could be argued that absent such damage a party does not face the kind of 
"unreasonable delay" that warrants judicial intervention pursuant to 
§ 706(1). This argument is not persuasive in a government records case. 
Although the requirement of irreparable harm might well be necessary 
where judicial intervention will tend to disrupt the orderly development of 
the administrative process in a matter within the special competence and 
jurisdiction of an administrative agency,*' the production of agency 
records does not involve such disruption. 

Taken by themselves §§ 555(b) and 706(1) of Title 5 would justify 
judicial relief when an unreasonably long period of time has elapsed. The 
proposed guideline might require an agency to act well before that time. 
But since the guideline is designed to translate the statutory requirement 
of prompt action into specific standards, it can be maintained that failure 
to observe these standards constitutes both "unreasonable" and 
"unlawful" delay. On this basis one may arguably maintain that relief 
can be sought pursuant to § 706(1) to compel adherence to the time 
limitations imposed by regulations. 

In a suit to compel delayed agency action on a request it is conceivable, 

"295 F.2d at 864-65. 

**See generally. 3 Davis, Administrative Law § 20.06 (1958). 


but not likely, that a court would limit its relief to an order requiring the 
agency to respond promptly to the request. With regard to other kinds of 
agency proceedings more integral to the administrative purocess, it would 
ordinarily be inappropriate for a court to remedy improper delay by an 
order influencing the outcome of the proceedings; the proper order would 
limit itself to expediting them.'"" Similar judicial restraint is not 
appropriate where the Freedom of Information Act is concerned. There is 
little reason to defer to administraive discretion where a request is made 
for non-exempt records. Although the question of whether a record is 
exempt under the Act may often raise difficult issues of statutory 
interpretation, these can be appropriately resolved by the courts without 
first referring them to the agency. 

It is true that authority can be found for the proposition that a statute 
directing administrative action should be interpreted and applied by the 
agency in the first instance, particularly where the decision turns "on 
matters of doubtful or highly debatable inference from loose statutory 
terms,"'"' as would often be the case where the exemptions listed in the 
Freedom of Information Act are concerned. But the cases taking such a 
position involve the application of statutes relating to the agency's 
primary area of concern and competence; responsible participation by the 
agencies in the elaboration of these statutory norms is thought necessary 
for the proper development of the administrative scheme of regulation. 
This is not the case with regard to the statutory exemptions under the 
Freedom of Information Act which apply to all agencies more or less 
uniformly. Section 552(a)(3) on its face indicates that little weight is to be 
given to the agency's interpretation and application of the statutory 
exemptions. In an action to obtain records withheld by the agency the 
court is to determine the matter de novo "and the burden is on the agency 
to sustain its action." The language, purpose and history of the Act all 
indicate that Congress intended to place on the courts rather than the 
agencies primary responsibility for interpreting the scope of a citizen's 
rights to obtain access to government records. This being so, the more 
relevant case authority is that which holds mandamus will even lie where 
the duty involved becomes clear only after the relevant statute has been 

To summarize the above discussion concerning judicial remedies, it can 
be said that even without adoption of the proposed guidelines and 
implementing regulations a person whose request for records is completely 

'••M.G. Davis & Co. v. Cohen, 256 F. Supp. 128. 133 n.7 (S.D.N.Y. 1966). 
'•'Panama Canal Co. v. Grace Lines. Inc. 356 U.S. 309, 317-18 (1958); R.E.A. v. 
Northern States Power Co., 373 F.2d 686, 695 n. 14 (8th Cir. 1967). 
'"Carey v. Local Bd. No. 2. 297 F. Supp. 352 (D. Conn. 1969). 

493-361 O - 73 - 11 


ignored or sidetracked by agency inaction can now bring a successful suit 
to compel production. The guideline recommends regulations that set 
definite limits within which the agency must act, thereby clarifying the 
time at which resort can be had to the courts. The proposed deadlines 
might well have the effect of accelerating the time when judicial 
intervention can be sought. This possibility might give rise to the objection 
that a court may require an agency to act more quickly than the 
circumstances warrant. But this is an unlikely eventuality, if the agency 
makes a showing that it requires additional time to produce the requested 
records, the court will undoubtedly grant the agency a reasonable period 
to comply with its order. '"^ Where the agency needs more time to evaluate 
the legal questions and policy considerations involved in deciding whether 
to assert a statutory exemption, it still has 60 days before the United 
States has to file an answer to the complaint.'"* More significantly, with 
regard to many requests the agency can easily obtain additional time prior 
to the filing of a complaint by taking appropriate steps when the requester 
complains to the appeals officer about improper delay. 

In calling for a procedure that will enable a requester to seek relief from 
delay within the administrative agency itself, the guidelines permit an 
expeditious exhaustion of remedies within the agency. Most agencies do 
not presently have comparable procedural regulations. In their absence a 
requester complaining of improper delay might claim that he could resort 

to the courts without first seeking relief at the head level of the agency.'"* 
The chance that such an argument would prevail is not great. The courts 
will probably be disposed to give the agencies an opportunity to correct 
the improprieties of their operating staff, particularly since the requester 
can make an effort in this direction at slight cost and with little burden. 
Certainly an impatient requester would be ill advised to file suit charging 
improper delay without first petitioning the agency head or the appeals 
officer in charge of records for relief. The proposed guideline would clarify 
the need and means for thus exhausting administrative remedies. 

'"Cf., Kurio V. United States, 281 F. Supp. 252 (S.D. Tex. 1968). 

'••Martin v. Neuschel, 396 F.2d 759 (3d Cir. 1968). The court held that the trial court 
could not enter judgment in the plaintiffs favor where the Government had not been given an 
opportunity to file an answer in accordance with Federal Rule 12 (a). 

'"In Sunshine Publishing Co. v. Summerfteld. 184 F. Supp. 767 (D.D.C. 1960) the court 
rejected the argument that the plaintiff had failed to exhaust its administrative remedies 
where its application for second class mailing privileges had been held up for an 
unreasonably long time (15 mos.) by the Post Office. The court itself ruled on the 
application, taking the position that exhaustion was not necessary where the agency's 
procedure was either inadequate or unavailable. 


V. Initial Denials of Requests 

A . Form of Denial 

The proposed guidelines (B-5-a) require an initial denial to be in writ- 
ing and to include both a reference to the specific exemption invoked by 
the agency and a brief explanation of how the exemption applies to the 
record withheld. As originally formulated, this guideline also would have 
required each initial denial to include a brief written statement of why the 
exempt record was being withheld as a matter of agency discretion. The 
purpose of the original requirement was in large part to inform the 
requester of the basis for the agency's initial action so that he would have 
an opportunity to challenge it on appeal within the agency. Comments 
from a number of agencies suggested that this requirement placed an 
unnecessary burden on agencies in the many cases where a requester would 
not bother to appeal an initial denail. For this reason the guideline was 
amended to provide that an agency be required to specify its reasons for 
withholding initially only when asked to do so by the requester. However, 
in all cases of a final agency denial on appeal, the guidelines (B-6-c) 
require a written specification of the reasons for withholding the record. 
This requirement is discussed at greater length below. 

The guideline would also require inclusion of a statement outlining the 
opportunity for appeal within the agency and subsequent review in the 
courts. Current regulations of some agencies require that the requester be 
informed of his right to an intra-agency appeal at the time of the initial 
denial."** Very little more of a burden is involved in requiring the agency to 
bring to the requester's attention the opportunity he has to bring a legal 
action eventually. Although there is a natural disinclination to invite 
litigation, the purpose of the Act suggests that every opportunity be used 
to insure that the individual citizen is aware of his legal rights. 

B. Collection of Denials 

The guideline calling for centralized collection of initial denials is a 
form of internal control designed to achieve two ends: I) stricter 
compliance with agency regulations and policies by operating staff; 2) 
uniformity in the assertion of exemptions at the initial denial stage. An 
incidental benefit derived from the practice will be the compiling of a 
readily available record of agency performance under the Freedom of 
Information Act. In a few interviews the objection was raised that the 
accumulation of the centralized file would be unduly burdensome. It is 
difficult to appreciate the merits of this objection, since the procedure will 

'"E.g., Internal Revenue Service, 26 C.F.R. § 601.702 (8) (1970); Department of 
Defense, 32 C.F.R, § 601.703 (8) (1970). 


only require the making of an additional carbon of the denial and the 
periodic transmittal of this to a centralized point. Some rather large 
departments already provide for such an agency-wide file of denials or for 
some equally centralized control over denials.'"^ 

VI. Intra- Agency Appeals 

A. Single Level of Appeals 

The guidelines (B-6-b) provide that there should be only one level of 
intra-agency appeal. A large number of agencies, including some of the 
large departments like Health, Education and Welfare, or Interior, 
provide for only one level of appeal from an initial denial. Other agencies 
provide for two levels of appeal from the initial denial. The second level of 
appeal can operate as a delaying strategy and this charge has been 

It is clear that one agency, the Civil Aeronautics Board, adopted two 
levels of appeal not as a delaying tactic but as a device to weed out 
frivolous requests.'"* The initial decision to deny a record is made at 
decentralized points within the CAB at the level of the office holding the 
record. This initial decision is made largely on the basis of established 
practice. The requester must appeal to the Executive Director for a 
decision to release a record of the kind regarded as exempt by the agency 
and traditionally withheld from the public. It is at this stage that 
discretion is first exercised in applying fixed policy to border-line cases. If 
a requester wishes to achieve a change in basic policy he must appeal to 
the Board itself. But a safeguard against delay is built into the regulations. 
The Executive Director must render a decision within seven working days 
after receiving the appeal."" 

This appellate structure is designed to obviate unnecessary expenditure 
of time on a discretionary decision at the initial denial stage in cases where 
the requester would not have enough interest to file an appeal. The fact 
that so many agencies, including large ones, have only one level of appeal 
would indicate that this form of discouragement is not necessary. 
However, in a large agency the handling of requests may have to be 

'"General Services Administration, 41 C.K.R. § 105-60.403 (b) (1970) (agency-wide file); 
Department of Defense, 32 C.F.R. § 286a.6 (c) (l)-(7) (1970) (centralized control for the 
office of the Secretary). 

'•'Nader, A Status Report on the Responsiveness of Some Federal Agencies to the 
People's Right to Know about their Government, statement released publicly on August 29, 
1969, and reproduced in 1 15 Cong. Rec. H'*"* (daily ed. September 3, 1969.) 

'••The reason given in the text for the adoption of two levels of appeals was provided in an 
interview with a CAB official. 

"•14 C.F.R. § 310.9(d) (1970). 


decentralized to such a degree that one cannot expect the exercise of 
discretion envisaged by the guidelines (B-4-e) at the initial reply stage. 
The ten-day extension for a reply provided by the guidelines can be used 
to refer the matter to a higher level for decision. Some agencies specifi- 
cally provide that an initial denial based on a legal exemption must come 
from a higher administrative level than the office at which the request is 
made'" or that knowledgeable legal personnel participate in the deci- 
sion."^ How the matter is handled internally is left up to each agency 
under the guideline as long as the requester has to deal with only one level 
of appeal."^ 

B. Form of Final Denials 

The proposed guidelines require a final denial to give written reasons for 
the discretionary withholding of exempt records. (B-6-c) They also re- 
quire the denials to be collected in a file readily available to the public and 
indexed according to the exemptions asserted by the agency. A denial is 
agency action affecting the requester's legal rights under the Freedom of 
Information Act. In taking such action agency personnel should give 
sufficient consideration to the request to formulate and make available to 
the public its reasons for withholding specific records. 

Some agency representatives who were interviewed questioned the 
advisability of having agencies bind themselves to giving reasons for the 
exercise of their discretion. They have suggested that such regulations 
invite judicial review of the agency's exercise of discretion. These critics 
assume that agency discretion in withholding exempt records is not 
subject to review. Although this assumption is warranted on a literal 
reading of the Act, it is not one that is universally accepted. At least one 
commentator assumes that the discretion is reviewable."^ He points to the 
language in the Act requiring the agency "to sustain its action" in an 
enforcement proceeding. But the language introducing the exemption 
states that "this section [§ 552 in its entirety] does not apply" to exempt 
matters, implying that the judicial remedy set out in § 552(c) is not 
applicable to exempt records. 

The legislative history is ambiguous on this point, although the Senate 
report has some language that might be stretched to imply judicial review 

"'E.g.. Department of the Navy, 32 C.F.R. § 701.1 0) (4)(ii) (1970). 

'"E.g.. Department of the Army, 32 C.F.R. § 518.7 (a) (1970); Department of Housing 
and Urban Development, 24 C.F.R. § 15.52 (1970); Atomic Energy Commission, 10 
C.F.R. § 910(b), (c)( 1970). 

'"It is possible that an agency might provide that lower level officials could grant requests 
raising no problems of confidentiality but denials could only come from higher level officials 
to whom questionable cases would be referred during the ten day extension. 

'"Nader, supra note 16, at 4. 


of agency discretion. The report notes that the court review of a denial 
must be de novo in order to prevent it "from becoming meaningless 
judicial sanctioning of agency discretion.""* Literally read, this language 
supports the conclusion that the court should review the agency's 
discretionary withholding of exempt records to see that clearly arbitrary 
decisions are not made. In context, the language may only be taking into 
account the fact that application of some of the broadly defined 
exemptions requires the exercise of judgment, as in the case of exemption 
five which relates to "inter-agency or intra-agency memorandums or 
letters which would not be available by law to a private party in litigation 
with the agency.""* What the Senate report clearly has in mind is 
avoidance of judicial deference to agency determination of what is and 
what is not exempt under such a provision. If the Senate report meant to 
imply more than this, one would have expected it to be more explicit. The 
Attorney General's Memorandum adopts the more restricted 
interpretation of the scope of judicial review. It states: The "agency . . . 
has the burden to justify the withholding, which it can satisfy by showing 
that the record comes within one of the nine exemptions in subsection 

The decision in General Services Administration v. Benson, 415 F.2d 
878 (9th Cir. 1969) might appear to point in the opposite direction since it 
advanced as an alternative holding the proposition that the defendant 
agency had the burden of showing a comp)elling reason for not producing 
even an exempt record. However, the court based this result on the 
General Services Administration's regulation that provides exemptions 
will not be asserted "unless there is a compelling reason to do so."'"* 
Absent such a regulation it is not at all clear that a court will review the 
exercise of an agency's discretion in invoking an exemption. 

If the courts conclude that the exercise of discretion in withholding 
exempt records is generally unreviewable, an agency regulation calling for 
specification of the reasons for withholding such records need not have the 
consequence of subjecting the agency's discretionary action to judicial 
review, as occurred in the Benson case, it all depends on how the 
regulation is worded. The regulation may expressly provide that the 
decision to withhold is within the sole discretion of the agency, 

"»S. Rep. at 8. 

"•The fifth exemption raises some difficult problems of interpretation. See generally. 
Davis, supra n. 5, at 794-97. Even where courts have given this language a restricted reading, 
its application to the facts of a particular request requires an exercise of judgment. E.g.. 
Consumers Union v. Veterans Administration, 301 F. Supp. 796, 804-06 (S.D.N.Y. 1969). 

'"Att'y Gen. Memo, at 295. 

'"41C.F.R. § 105-60.105-2(1970). 


notwithstanding the specification of reasons. In accord with the dominant 
purpose of the Freedom of Information Act"* most agencies now 
expressly follow a policy of favoring disclosure of even exempt records.'^" 
Exemptions are only asserted where the reasons behind the exemptions, or 
similarly valid reasons, are served by non-disclosure. In most cases where 
this policy is embodied in regulations, the language used indicates that the 
agency means to retain sole discretion in dealing with exempt records.'^' A 
regulation clearly making this point would seem to run little risk of 
providing a basis for judicial review if it is finally determined that the Act 
itself does not call for it. 

It might be suggested that agencies fully committed to the free 
information policy underlying the Act should be ready to submit their 
decisions to judicial scrutiny and should adopt regulations similar to that 
of the General Services Administration involved in the Benson case. 
Although such regulations are to be encouraged, the proposed guidelines 
do not recommend their uniform adoption. The various agencies face 
different problems in this area because of the wide diversity of their 
records. In some cases detailed justification of the assertion of an 
exemption in a lawsuit, as opposed to a general explanation to the 
requester, might compromise the confidentiality that should be accorded 
the records involved. It was thought more appropriate to have each agency 
decide this matter in light of its own particular problems. 

Some deadline on appeals is necessary to give point to the elaborate 
deadlines at the initial request stage. The twenty working-day deadline 
proposed by the guidelines (B-6-b) amounts to about a full month. This 
period of time should be enough in even very difficult cases. It must be 
recalled that in a case involving any difficulty the agency can take at least 
an additional two weeks to decide at the initial refusal stage. In more 
complicated cases additional time can be taken at this point. The fruits of 

'"Ail'y Gen. Memo, at 269. 

'"E.g. Office of Economic Opportunity, 45 C.F.R. § 1005.9 (b) (1970); Department of 
Defense, 32 C.F.R. § 286.4 (b) (1970). 

'"Compare OEO's regulation, which provides that "the office will invoke these exceptions 
(exemptions) as sparingly as possible, consistent with its obligation to administer the laws 
for which it is responsible fairly and effectively" (45 C.F.R. § 1005.9 (b)) and DOD's 
regulation, which provides that "information exempt from public disclosure . . . should be 
made available to the public . . . when component officials determine that no significant 
purpose would be served by withholding the information . . . (which determination) is 
within the sole discretion of the component" (32 C.F.R. § 286.4(b)) with the GSA's 
regulation, which provides that: "(A)uthority for nondisclosure will not be invoked unless 
there is a reason to do so. in the absence of such compelling reason, records and other 
information will be disclosed although otherwise subject to exemption." (41 C.F.R. § 105- 


the deliberations at this stage in framing and exploring the issue can be 
preserved for consideration on appeal. Therefore, even with a twenty-day 
deadline on appeal over two months of time can be devoted to a highly 
complicated case before final agency action will be taken. Finally, to 
cover novel and very complicated cases, the guidelines permit the agency 
to extend the deadline on the appeal for a reasonable period. But the 
agency must supply in writing the reasons necessitating such an extension. 
As indicated above,'" adoption of the proposed guidelines might 
accelerate judicial review. Where an agency does not take final action on 
an appeal within twenty days as required by its regulations, there is a good 
chance that a court may permit the requester to pursue his judicial remedy 
without further delay. The pressure felt by an agency because of this 
possibility will be salutary rather than detrimental in view of the total 
period of time available to it to consider the matter of an exemption. 

VII. Fees 

Regulations fixing fees for the production and copying of records vary 
widely from agency to agency, refiecting the wide discretion each one has 
in setting user charges. The primary source of agency authority to set user 
fees is found in 3 1 U.S.C. § 483(a) (1964 ed.) which provides: 

It is the sense of Congress that any . . . service . . . document, 
report ... or similar thing of value or utility . . . provided ... by 
any Federal Agency . . . shall be self-sustaining to the full extent 
possible, and the head of each Federal Agency is authorized by 
regulations (which, in the case of agencies in the executive branch, 
shall be as uniform as practicable . . .) to prescribe therefore such 
fee . . . , if any, as he shall determine . . . to be fair and equitable 
taking into consideration direct and indirect cost to the Government, 
value to the recipient, public policy or interest served, and other 
pertinent facts, and any amount so determined . . . shall be 
collected and paid into the Treasury as miscellaneous receipts .... 

In Aeronautical Radio, Inc. v. United States. 335 F.2d 304 (7th Cir. 
1964) the court upheld the statute, which was under attack as an 
unconstitutional delegation of authority because it expressly permits 
agencies to forego the charging of any fees and because the standards set 
out in it — i.e., cost to the government, value to the recipient and the public 
interest served — were too broad, diverse and conflicting. The court 
indicated that the wide discretion given agencies in this matter was 
necessary and appropriate in view of the diverse benefits and agencies 

"Supra text at notes 89 to 103. 


The Attorney General's Memorandum stresses the language in the 
statute seeking to make such services self-sustaining and recommends 
charges based on total costs. '^^ To support this position it also quotes 
from Bureau of the Budget Circular No. A-25, September 23, 1959, which 
provides that if "a service (or privilege) provides special benefits to an 
identifiable receipient above and beyond those which accure to the public 
at large, a charge should be imposed to cover the full cost to the Federal 
Government of redering that service." However, it is questionable 
whether production or copying of government records falls within the 
category of a "special benefit" as contemplated by the Circular, which 
sets forth three general illustrations of a special benefit: 1) services that 
enable the beneficiary to obtain more immediate or substantial gains or 
values than the general public, as with patents or business licenses; 2) 
services that provide business stability or assure public confidence in the 
business activity of the beneficiary, as with safety inspections of crafts; or 
3) services performed at the request of the recipients above and beyond the 
services regularly received by others of the same group, as with passports 
or airmen's certificates. 

The Circular goes on to contrast "special benefits" with services 
"primarily considered as benefitting broadly the general public," where 
the "ultimate beneficiaries ... are obscure," as with the licensing of new 
biological products. These latter services should be rendered free of 
charge. Some requests for records fall more readily within this general 
benefit category than the special benefit one. For instance, records 
provided to a newspaper reporter or an author concerning a matter of 
wide interest ultimately benefit the general public. 

A highly refined user fee policy would discriminate among requests on 
the basis of their intended use. Persons requesting records for private 
commercial gain would be charged the full direct and indirect costs; 
persons requesting records to inform the public about matters of general 
concern would be charged nothing. However, an attempt to apply such a 
policy faithfully in all cases would probably be unworkable 
administratively and hardly likely to lead to uniform practice within an 
agency, much less among agencies. Circular No. A-25 does suggest a 
limited number of distinctions that ultimately relate to use, but they are 
based primarily on the character of the user. Thus it recognizes the 
propriety of waiving fees in the case of groups engaged in nonprofit 
activities for the public safety, health and welfare. Except for such special 
cases of waiver it would be more feasible as a matter of administration 

"^Att'y Gen. Memo, at 293-94. 


and more desirable as a matter of policy to have all other fees set 

It is also desirable as a matter of policy to achieve uniformity between 
the fees set by the various agencies. The statute itself calls for as much 
uniformity among the agencies as is practicable, and Bureau of the 
Budget Circular No. A-25, setting forth general policies relating to user 
charges, reiterates this theme. Uniformity with regard to fees for 
disseminating government held information is particularly desirable since 
differences among agencies may reflect differing valuations of the public 
interest served by this function. The Freedom of Information Act implies 
that a high, uniform value should be given to this interest by all agencies. 

Even if the agencies were to adhere to the Attorney General's 
recommendation of recovering full costs, the charges should be as uniform 
as possible. In many cases one exp)ects that the process of retrieving and 
reproducing documents will be more or less standardized. However, there 
may be some variations in costs from agency to agency because of 
different methods of filing and storing documents. An even greater reason 
for variations in costs could be the differing salary levels of the employees 
engaged in searching. These costs might not only vary from agency lo 
agency but might even vary within an agency for different kinds of 

Because of these complexities, it may not be feasible to establish 
uniform fees for all agencies with regard to the various aspects of record 
production and duplication. For this reason, the proposed guidelines, 
instead of calling for uniform fees, call for the establishment of uniform 
criteria to be used in stablishing fees. The matter is to be studied and the 
criteria are to be formulated by a committee composed of representatives 
from the Office of Management and the Budget, the Department of 
Justice and the General Services Administration. The guidelines go on to 
direct the committee to recommend adoption of uniform fees and policies 
"where feasible." 

Examination of existing fee schedules reveals the need for at least 
uniform criteria. The present fee schedules show wide variations that 
cannot possibly be explained on the ground of differing labor or other 
costs. With regard to copying charges, they range from ten cents per page 
or less in some agencies'^^ to forty'^* and even fifty cents'" per page in 
others, with twenty-five cents the most popular charge.'" Some agencies 

'"fX. Office of Economic Opportunity, 45 C.F.R. § 1005.13 (1970); Securities and 
Exchange Commission, 17 C.F.R. § 200.80e (b)(1) (1970). 
'"DepartmentofState, 22 C.F.R. § 6.8 (a) (3) (1970). 
"•Department ofTransportation, 49 C.F.R. § 7.85 (b)(1) (1970). 
'"£.g.. The Renegotiation Board, 32 C.F.R. § 1480.1 (1970); Equal Employment 


have a special charge for the first page copied that goes up to $1.00 per 
pggg 128 jhere is just as great a variation among the agencies with regard 
to the scheduled fees for time spent on searching for documents, running 
from a low of $2.50 per hour in the case of the Veterans Administration'^* 
up to $8.00 per hour in the Post Office,'^ with the hourly charges of 
$3.50'^' and $5.00 showing about equal popularity. '^^ The Department of 
Transportation has a uniform search charge for each record of $3.00.'^ 

In light of these variations there can be no doubt that the agencies differ 
in the extent to which they include indirect costs in their fees. Those 
agencies charging ten cents or less per page for the copying of documents 
are not recovering much more than direct costs, while the others are 
recovering in varying degrees such indirect costs as a proportionate 
allocation of rent, management and supervisory costs, maintenance, 
operation and depreciation of buildings and equipment, as well as for such 
personnel costs as retirement credits and employee insurance. Bureau of 
the Budget Circular No. A-25 suggests that indirect costs such as these be 
taken into account when a special benefit is involved. In the case of 
agencies with the highest fees it appears that some even take into account 
such elements as the average time that a secretary may have to wait in line 
at the duplicating machine.'*^ 

A policy of discouraging "frivilous requests" explains why some 
agencies favor a broad inclusion of indirect costs. The Attorney General's 
Memorandum suggests that such discouragement is an appropriate 
consideration in setting fees,'^* but neither the language of the Act nor its 
legislative history supports such a policy; if anything, they reflect a 
contrary spirit. 

The published schedules do not reveal the full extent of the variation in 
fees actually charged by different agencies because of widespread 

Opportunity Commission, 29 C.F.R. § 1610.17 (a) (3) (1970); Atomic Energy 
Commission, 10 C.F.R. § 9.9 (b)(1) (1970); Economic Development Administration, 13 
C.F.R. § 301.63(e) (iii) (a) (1970); Department of Labor, 29 C.F.R. § 70.6 (b) (1970); 
Internal Revenue Service, 26 C.F.R. § 601.702 (c)(5) (1970). 

'^E.g.. Renegotiation Board, 32 C.F.R. 1480.12 (1969). 

'»38 C.F.R. § 1.526 (i)(2) (1970). 

"•39 C.F.R. § 113.5 (a)(2) (1970). 

'"E.g.. Internal Revenue Service, 26 C.F.R. § 601.702 (c)(5) (1970); Department of Stale, 
22 C.F.R. § 6.8 (a)(1) (1970). 

'"Department of Commerce, 15 C.F.R. § 4.8(b)(2) (1970); Department of Housing and 
Urban Development, 24 C.F.R. § 5.4(a)(2) (1970). 

"M9 C.F.R. § 7.85 (a) (1970). 

'*The officer who had set the fee in a particular agency indicated in an interview that he 
had taken secretarial time spent in waiting at the duplicating machine into account in setting 
the fee. 

'*»/!»> Gen. Memo, at 294-95. 


departure from them in practice. The interviews revealed that some 
agencies will provide free of charge copies of as many as twenty or thirty 
pages of documents, and perhaps more. Some make no charge for 
searches unless they run more than a few hours. There are two reasons for 
these departures from the published schedules. First, the agencies do not 
immediately benefit from the collections, which must go into the 
Treasury's general fund as miscellaneous receipts. As a result, the 
processing and collecting of fees only adds to the real costs incurred by the 
agencies without a directly compensating benefit. Some agencies, 
therefore, do not feel compelled to recover the costs incurred by the 
Government except in those cases where the requests make a substantial 
claim on agency time. Second, some agencies are disposed to make 
information as freely available as possible. A few have written this policy 
into their regulations by providing that, to the extent practicable, no 
charges will be made for locating or copying records.'" Many others have 
adopted this policy in practice despite apparently contrary regulations. 

The proposed guidelines also indicate some of the policy considerations 
that should guide the proposed committee in setting uniform criteria for 
fees generally and, where feasible, uniform specific fees and policies. These 
policy considerations can be inferred from the proposals in the guidelines 
calling for uniformity with regard to copying fees and for the absence of a 
fee for a routine search or for limited screening out of exempt records and 

These proposals indicate that all agencies should depart from setting 
fees on the basis of a full cost policy with regard to most document 
requests. It recognizes that production of most kinds of government 
documents confers in many cases the general benefit of informing the 
public. Therefore, a uniform fee for producing and . opying such 
documents should not be based on a full cost policy. A gooJ case can be 
made for the recovery of only direct costs. Most of the indirect costs 
attributable to the production and copying of records would be incurred 
by the agencies even without the passage of the Freedom of Information 
Act. This is certainly true of the building depreciation and maintenance 
charges that are proportionally allocated to the production of records by 
some agencies. It could be true even of some of the direct fixed costs, such 
as the rental or depreciation charges for the duplicating equipment itself 
It is likely that some agencies would have to purchase this equipment for 

'"Office of Economic Opportunity, 45 C.F.R. § 1005.13 (1970). The Department of 
Housing and Urban Development does not charge for the first full hour of search time spent 
on a request. 24 C.F.R. § 15.14 (a)(1) (1970). The Securities and Exchange Commission 
does not charge for the first one-half hour of search time spent on a request. 17 C.F.R. 
§ 200.80e(a)(1970). 


their internal needs, and the copying or records for the public only has 
increased the rate of usage of the equipment. Because of this possibility, it 
would be difficult to come up with a direct cost attributable to the copying 
of records for the public if that cost were to be limited only to what is 
marginally incurred in duplicating records for the general public. 

Copying Fees. In recognition of these policy considerations, where the 
copying of ordinary documents is concerned the guidelines turn away 
from average direct costs incurred by the agencies to the market place for 
a standard norm. The guidelines would have all agencies charge the going 
commercial rate for copying ordinary documents. The average 
commercial charge, of course, covers not only overhead costs like 
depreciation of duplicating equipment but also includes a profit factor. 
Consequently, one expects that this fee should cover at least the direct 
labor and material costs involved in copying documents. It may not be 
enough, however, to cover the fixed direct costs involved in copying 
documents or all direct handling costs related to such copying because the 
agencies are not primarily geared to the business of duplicating documents 
for the public as are private profit-making firms. Even though the going 
market rate may not cover all direct costs of copying, it is still appropriate 
to adopt it as the norm. The public interest served in making copies of 
government records available at no greater charge than in the case of 
private papers justifies a fee that covers less than all direct fixed and 
variable costs. Use of the going commercial rate for copying fees would 
allow agencies to contract out the duplication of requested records to 
private firms, as long as the fees charged were in line with the going rate. 
Several agencies utilize the contracting out procedure, but in some cases 
the fees charged are clearly excessive when measured against the proposed 
guidelines. '^^ The FPC contracts out, but the fees charged are in line with 
the proposed guidelines.'^** A charge of seven cents is made for each page 
reproduced. There also is a minimum charge of one dollar for each order. 
Such a reasonable minimum charge would appear to be in order where 
work is subcontracted out. 

Searching Fees. The guidelines recommend that all agencies not charge 
a fee in the case of a routine search for a specific document. This 
recommendation is based on existing practice. Some agencies by 
regulation omit a charge for initial search time. This period varies from 
fifteen minutes'^' to one hour'*" according to published schedules. 

'"In some cases the fee is twenty-five cents for each page copied. 

'"A fee of seven cents per page is charged for copying, with a minimum charge of $ 1 .00 for 
each order. 

"•Department of Justice, 28 C.F.R. § 16.4(b) (1970); however, a $3.00 apphcation fee is 

"•Department of Housing and Urban Development, 24 C.F.R. § 15.14 (a)(1) (1970). 


Variations in actual practice range more widely than this. It seems 
appropriate that some part of the search time be subsidized by the 
taxpayer in order to implement a free and open information policy. The 
guideline does not specify any number of minutes. It refers to "routine 
searches," for which there should be no charge. Search fees are limited to 
cases where the circumstances indicate that a substantial amount of time 
will be involved, as when the request asks for a number of documents. 

The agencies also vary among themselves with regard to computing the 
time charge; some charge by the hour while others charge by a fraction 
thereof. Computation by the hour can result in a larger fee in some cases. 
Here again there can and should be uniformity among the agencies. 

Screening Out Exempt Documents. One cost that is incurred by the 
agencies arises where competent staff must screen documents to determine 
whether they are exempt, and if so, whether they should nonetheless be 
disclosed. As a theoretical matter it would seem that these costs should be 
borne entirely by the agency in all cases. Certainly the requester is not 
deriving any benefit, special or otherwise, from this screening. 
Presumably the general public interest is being served when the 
exemptions are asserted and the agency time spent on these matters should 
be viewed as a public service. For this reason the guideline provides that in 
a routine case no charge shall be made for the time spent screening 
documents to protect exempt information. 

However, where the screening process would be very burdensome, as in 
the case of very broad categorical requests, it would be appropriate to 
negotiate with the requester a fee to cover these costs. Such a charge would 
be particularly appropriate where the requester is seeking the records 
primarily for his own use and benefit. Where the intended use of the 
records would relate to the general public interest, there would be good 
reason not to charge for the screening out of exempt records. The 
proposed guidelines would permit the agencies in their discretion to omit 
charges for screening out in these cases. 



RECOMMENDATION 24: Principles and Guidelines for 
Implementation of the Freedom of Information Act 

Adopted by the Administrative Conference of the United States 
May 8, 1971 

The Freedom of Information Act, 5 U.S.C. § 552, expresses 
important policies with respect to the availability to the public of records 
of Federal agencies. To achieve free access to and prompt production of 
identifiable government records in accordance with the terms and policies 
of the Act, each agency* should conform to the statutory policy 
encouraging disclosure, adopt procedural regulations for the expeditious 
handling of information requests, and review the fees charged for 
providing information. 


A. General Principles 

Agencies should conform to the following principles in handling 
requests for information: 

1. Each agency should resolve questions under the Freedom of 
Information Act with a view to providing the utmost information. The 
exemptions authorizing non-disclosure should be interpreted restrictively. 

2. Each agency should make certain that its rules provide the fullest 
assistance to inquirers, including information relating to where requests 
may be filed. It should provide the most timely possible action on requests 
for information. 

3. When requested information is partially exempt from disclosure the 
agency should, to the fullest extent possible, supply that portion of the 
information which is not exempt. 

4. If it is necessary for an agency to deny a request, the denial should be 
promptly made and the agency should specify the reason for the denial. 
Procedures for review of denials within the agency should be specified and 
any such review should be promptly made. 

5. Fees for the provision of information should be held to the minimum 
consistent with the reimbursement of the cost of providing the 
information. Provision should be made for waiver of fees when this is in 
the public interest. 

* The term agency as used herein denotes an agency, executive department, or a separate 
administration or bureau within a department which has adopted its own administrative 
structure for holding requests for records. 


B. Guidelines for Handling of Information Request 

Each agency should adopt procedural rules to effectuate the principles 
stated in Part A. To assist in this task the following guidelines are set forth 
as a model of the kinds of procedures that are appropriate and would 
accomplish this purpose. 

1 . Agency assistance in making request for records. 

Each agency should publish a directory designating names or titles and 
addresses of the particular officer and employees in its Washington office 
and in its various regional and field offices to whom requests for 
information and records should be sent. Appropriate means should be 
used to make the directory available to members of the public who would 
be interested in requesting information or records. 

Each agency should direct one or more members of its staff to take 
primary responsibility for assisting the public in framing requests for 
identifiable records containing the information that they seek. The names 
or titles and addresses of these staff members should be included in the 
public directory referred to above. 

2. Form of request. 

a. No standard form. 

No agency should require the use of standard forms for making 
requests. Any written request that identifies a record sufficiently for the 
purpose of finding it should be acceptable. A standard form may be 
offered as an optional aid. 

b. Categorical requests. 

i. Requests calling for all records falling within a reasonably 
specific category should be regarded as conforming to the statutory 
requirement of "identifiable records" if the agency would be reasonably 
able to determine which particular records come within the request and to 
search for and collect them without unduly burdening or interfering with 
agency operations because of the staff time consumed or the resulting 
disruption of files. 

ii. If any agency responds to a categorical request by stating that 
compliance would unduly burden or interfere with its operations, it should 
do so in writing, specifying the reasons why and the extent to which 
compliance would burden or interfere with agency operations. In the case 
of such a response the agency should extend to the requester an 
opportunity to confer with it in an attempt to reduce the request to 



manageable proportions by reformulation and by outlining an orderly 
procedure for the production of documents. 

3. Partial disclosure of exempt records and files. 

Where a requested file or record contains exempt information that the 
agency wishes to maintain confidential, it should offer to make available 
the file or a copy of the record with appropriate deletions if this can be 
done without revealing the exempt information. 

4 . Time for reply to reques t . 

Every agency should either comply with or deny a request for records 
within ten working days of its receipt unless additional time is required for 
one of the following reasons: 

a. The requested records are stored in whole or part at other locations 
than the office having charge of the records requested. 

b. The request requires the collection of a substantial number of 
specified records. 

c. The request is couched in categorical terms and requires an extensive 
search for the records responsive to it. 

d. The requested records have not been located in the course of a 
routine search and additional efforts are being made to locate them. 

e. The requested records require examination and evaluation by 
personnel having the necessary competence and discretion to determine if 
they are: a) exempt from disclosure under the Freedom of Information 
Act and b) should be withheld as a matter of sound policy, or revealed 
only with appropriate deletions. 

When additional time is required for one of the above reasons, the 
agency should acknowledge the request in writing within the ten-day 
period and should include a brief notation of the reason for the delay and 
an indication of the date on which the records would be made available or 
a denial would be forthcoming. 

The ten-day time f)eriod specified above should begin to run on the day 
that the request is received at that office of the agency having charge of the 
records. When a request is received at an office not having charge of the 
records, it should promptly forward the request to the proper office and 
notify the requester of the action taken. 

If an agency does not reply to or acknowledge a request within the ten- 
day period, the requester may petition the officer handling appeals from 
denials of records for appropriate action on the request. If an agency does 
not act on a request within an extended deadline adopted for one of the 
reasons set forth above, the requester may petition the officer handling 
appeals from denials of records for action on the request without 

493-361 O - 73 - 12 


additional delay. If an agency adopts an unreasonably long extended 
deadline for one of the reasons set forth above, the requester may petiton 
the officer handling appeals from denials of records for action on the 
request within a reasonable period of time from acknowledgement. 

An extended deadline adopted for one of the reasons set forth above 
would be considered reasonable in all cases if it does not exceed ten 
additional working days. An agency may adopt an extended deadline in 
excess of the ten additional working days (i.e. a deadline in excess of 
twenty working days from the time of initial receipt of the request) where 
special circumstances would reasonably warrant the more extended 
deadline and they are stated in the written notice of the extension. 

5 . Initial denials of requests. 

a. Form of denial. 

A reply denying a written request for a record should be in writing 
and should include: 

i. A reference to the specific exemption under the Freedom of 
Information Act authorizing the withholding of the record and a brief 
explanation of how the exemption applies to the record withheld. 

ii. An outline of the appeal procedure within the agency and of 
the ultimate availability of judicial review in either the district in which the 
requester resides or has a principal place of business, or in which the 
agency records are situated. 

If the requester indicates to the agency that he wishes to have a brief 
written statement of the reasons why the exempt record is being withheld 
as a matter of discretion where neither a statute nor an executive order 
requires denial, he will be given such a statement. 

b. Collection of denials. 

A copy of all denial letters and all written statements explaining why 
exempt records have been withheld should be collected in a single central- 
office file. 

c. Denials; protection of privacy. 

Where the identity of a requester, or other identifying details relating to 
a request, would constitute an unwarranted invasion of personal privacy if 
made generally available, as in the case of a request to examine one's own 
medical files, the agency should delete identifying details from copies of 
the request and written responses to it that are made available to 
requesting members of the public. 


6. I ntra-agency appeals. 

a. Designation of officer for appeals. 

Each agency should publicly designate an officer to whom a requester 
can take an appeal from a denial of records. 

b. Time for action on appeals. 

There should be only one level of intra-agency appeal. Final action 
should be taken within twenty working days from the time of filing the 
appeal. Where novel and very complicated questions have been raised, the 
agency may extend the time for final action for a reasonable period 
beyond twenty working days upon notifying the requester of the reasons 
for the extended deadline and the date on which a final response will be 

c. Action on appeals. 

The grant or denial of an appeal should be in writing and set forth the 
exemption relied on, how it applies to the record withheld, and the reasons 
for asserting it. Copies of both grants and denials on appeal should be 
collected in one file open to the public and should be indexed according to 
the exemptions asserted and, to the extent feasible, according to the type 
of records requested. 

d. Necessity for prompt action on petitions complaining of delay. 

Where a petition to an appeals officer complaining of an agency's 
failure to respond to a request or to meet an extended deadline for 
responding to a request does not elicit an appropriate response within ten 
days, the requester may treat his request as denied and file an appeal. 
Where a petition to an appeals officer complaining of the agency's 
imposition of an unreasonably long deadline to consider assertion of an 
exemption does not bring about a properly revised deadline, the requester 
may treat his request as denied after a reasonable period of time has 
elapsed from his initial request and he may then file an appeal. 

C. Fees for the Provision of Information 

Each agency should establish a fair and equitable fee schedule relating 
to the provision of information. To assist the agencies in this endeavor, a 
committee composed of representatives from the Office of Management 
and Budget, the Department of Justice and the General Services 
Administration, should establish uniform criteria for determining a fair 
and equitable fee schedule relating to requests for records that would take 
into account, pursuant to 31 U.S.C. § 483a (1964), the costs incurred by 


the agency, the value received by the requester and the public interest in 
making the information freely and generally available. The Committee 
should also review agency fees to determine if they comply with the 
enunciated criteria. These criteria might include the following: 

1. Fees for copying documents. In view of the public interest in 
making government information freely available, the fee charged for 
reproducing documents in written, typewritten, printed or other form that 
permits copying by duplicating processes, should be uniform and not 
exceed the going commercial rate, even where such a charge would not 
cover all costs incurred by particular agencies. 

2. No fee for routine search. In view of the public interest in making 
government held information freely available, no charge should be made 
for the search time and other incidental costs involved in the routine 
handling of a request for a sj)eciric document. 

3. No fee for screening out exempt records. As a rule, no charge 
should be made for the time involved in examining and evaluating records 
for the purpose of determining whether they are exempt from disclosure 
under the Freedom of Information Act and should be withheld as a matter 
of sound policy. Where a broad request requires qualified agency 
personnel to devote a substantial amount of time to screening out exempt 
records and considering whether they should be made available, the 
agency in its discretion may include in its fee a charge for the time so 
consumed. An important factor in exercising this discretion and 
determining the fee should be whether the intended use of the requested 
records will be of general public interest and benefit or whether it will be 
of primary value to the requester. 



Survey of F*ersons Who May Have Requested Records From 

Federal Agencies 

Approximately 400 questionnaires were sent to organizations that are 
likely to request records from federal agencies. Public interest groups, 
trade associations, newspapers and a sample of 20 law firms having a 
substantial Washington administrative law practice were included m the 
mailing. The questionnaire asked how often the responding parties 
encountered difficulties in requesting federal records. This general 
question was succeeded by specific ones asking how often the responding 
parties met with delay, evasiveness, rejections because of allegedly 
inadequate identification of the documents, denials because of allegedly 
exempt subject matter and refusals to comply with categorical requests. 
Finally, the responding parties were asked to indicate whether they noted 
any improvement in public access to government records after passage of 
the Freedom of Information Act. 

Only 44 of the questionnaires were completed and returned, including 
one half of the 20 questionnaires sent to law firms. In view of both the low 
rate of return and the relatively small number of completions the results of 
the survey are of limited value. One of the reasons for the low rate of re- 
turn may be the relatively small number of organizations that have sought 
to obtain records from federal agencies since 1967. Of the 44 returns, 
exactly 25% reported that the responding parties had asked for no records 
since 1967. Although the questionnaire was designed to elicit returns indi- 
cating a complete lack of experience in requesting records from federal 
agencies, it is possible that organizations with no experience to report may 
have ignored the questionnaire on the assumption that they could con- 
tribute nothing of value to the survey. 

Whatever the reason for the low rate of return, it is clear that reports 
from 33 requesters of government records selected more or less at random 
do not provide a sufficient sample for an accurate survey of the public's 
experience generally in obtaining government records. Despite the 
limitations of the survey it does provide some information from which 
Hmited conclusions can be drawn. 

The returns support the conclusion that the publicized difficulties in 
obtaining records from federal agencies do not represent isolated cases. Of 
the 33 parties responding who had some experience in requesting records, 
8 reported regularly recurring difficulties, 7 reported a noticeable 
frequency, 5 reported occasional difficulties and 13 reported few if any. 
Almost half of the replies (15) reported at least frequent difficulties. As 
might be expected, those respondents who frequently request records 


reported a higher rate of difficulty than those who only submit occasional 
requests, while those who had made only a few requests reported a low 
rate of difficulty. 

Seven (7) respondents reported frequent delays in obtaining an initial 
reply from the agencies and 10 reported occasional delays. The problem of 
delay was underscored in a few of the returns that reported a generally 
favorable exj)erience. As one respondent who reported favorably put it, 
"The main obstacle to date has been the inherent foot dragging of the 
federal bureaucracy upon receipt of such requests." The experience with 
evasive agency replies was about the same as with delay. Seven (7) 
respondents reported frequent instances of confusing and contradictory 
statements and 10 reported occasional instances. 

Proper identification of records did not create frequent difficulties for 
most respondents. Only 3 reported frequent difficulties in this regard and 
7 reported occasional ones. More difficulty was encountered in connection 
with categorical requests. Fourteen (14) returns reported having made 
such requests and 8 reported denials in such cases. In some of the cases 
either the burdensome nature of the request or the difficulty in screening 
out exempt records was assigned as the reason for refusal. 

An important reason assigned by the parties for the difficulty in getting 
records was the assertion initially by the agency that the records sought 
were exempt. Seven (7) respondents indicated that this was a frequent 
cause of difficulty and 1 1 reported that it was an occasional one. Although 
in many cases the denials were reversed on appeal in the agency, the 
respondents complained of the delay caused by the initial refusals. Seven 
(7) respondents encountered frequent delay in having an agency initially 
determine whether a record was exempt and 5 encountered occasional 
difficulties in this regard. 

Most of the respondents concluded that the practices of the agencies in 
making records available to the public had improved to some extent with 
the passage of the Act. Although 12 returns reported no change in agency 
practices, 6 of these also reported few if any difficulties in obtaining 
records. Thus, only 6 of those who saw no change were of the opinion that 
change was required. Twelve (12) respondents saw some change. Of these 
7 nonetheless reported either regularly recurring overall difficulties in 
getting records, or at least frequent ones, indicating that they could clearly 
see room for improvement. Only 4 respondents saw a marked 
improvement in agency practice after passage of the Act. 




Committee on Rulemaking* 

The Recommendation is designed to contribute to the solution of 
several closely interrelated problems in the rulemaking area. 

The broadest and most basic of these problems, in the view of the 
Committee on Rulemaking, is the need for increased articulation of 
agency policies, wherever feasible through formal procedures and 
with the opportunity for participation by interested persons. Com- 
mentators addressing themselves to this problem have found, not- 
withstanding the existing rulemaking provisions of the Administra- 
tive Procedure Act, that many agencies do not use the available 
procedures as fully as would be desirable, but rather act largely on the 
basis of policies and standards that either have not been articulated 
or, even if articulated within the agency, have never been subjected 
to the salutary crucible or formal procedures and public participa- 
tion.^ The Committee believes that this criticism of present adminis- 
trative practice is largely well-founded, and that a Conference Rec- 
ommendation on the subject is warranted. 

This Recommendation supplements the work of the Committee on 
Informal Action in examining specific programs that may need greater 
articulation of standards or policies, and in developing guidelines to 
assist agencies in determining when a greater degree of articulation 
may be indicated.- The Committee on Rulemaking believes that the 

♦The Committee is indebted to Brice M. Clagett, Esq., who served as its Ad Hoc Secretary 
during the chairmanship of Howard C. Westwood, for having prepared the original support- 
ing memorandum on this subject in the spring of 1970. The memorandum as set forth herein, 
however, has been substantially revised, to reflect subsequent developments as well as modi- 
fications in the Committee's recommendations, by its present Chairman, Martin P. Richman. 

1 See, e.g., Davis, "A New Approach to Delegation," 36 U. Chi. L. Rev. 713, 728-33 (1969) ; 
Robinson, "The Making of Administrative Policy : Another Look at Rulemaking and Adjudi- 
cation and Administrative Procedure Reform" 118 U. Pa. L. Rev. 485 (1970) ; Clagett, 
"Informal Action — Adjudication — Rulemaking : Some Developments, Mostly of the Last Two 
Years, in Federal Administrative Law," Duke Law Journal, Vol. 1 (April 1971). Cf. Note, 
"The Use of Agency Rulemaking to Deny Adjudications Apparently Required by Statute," 
54 Iowa L. Rev. 1086 (1969). 

2 Committee on Informal Action, "Guidelines for the Study of Informal Action in Federal 



present Recommendation will aid the agencies in furthering eflfective 
implementation of the concept of articulation of policies. 

Intimately involved with the general need for greater articulation, 
in this Committee's opinion, is the need for certain corollary standards 
or safeguards in the procedural area : 

1. To encourage in rulemaking the use, where appropriate, of proce- 
dures for public participation which are permitted but not required 
by statute ; 

2. To enable interested persons to present their positions and related 
facts through evidentiary presentation in appropriate circumstances ; 

3. To ensure the availability of reasonable procedures for requesting 
an exception to or waiver of an existing rule ; and 

4. To ensure, where an agency chooses to formulate new departures 
in general policy in the course of a formal adjudication, the provision 
of adequate procedures for the presentation of views and facts by 
persons not parties to the adjudication who may be substantially 
affected by the decision involved. 

The interplay between the general need for greater articulation of 
policies and standards and the four objectives just stated forms the 
basis for the Committee's proposed Recommendation. 

The Recommendation consists of a statement of the general principle 
that agencies should strive to act on the basis of articulated policies 
that have been developed through public procedures, and five num- 
bered propositions containing particular recommendations, all of 
which the agencies have full authority under existing law to 

The introductory statement and Propositions 1 and 2 are self- 
explanatory and largely noncontroversial. Some courts have begun 
to move toward a recognition that due process or like considerations 
may require in some circumstances that agencies articulate standards 
rather than proceed on the basis of unfettered discretion. See Environ- 
mental Defense Fund v. Ruckelshaus, 27 Ad. L. 2d 1054, 1067-70 (D.C. 
Cir. 1971) ; Holmes v. New York City Housing Authority, 398 F.2d 
262 (2d Cir. 1968) ; Hornshy v. Allen, 326 F.2d 605 (5th Cir. 1964). 

It will be noted that Propositions 1 and 2, while recommending that 
the standards that will guide agency determinations be articulated, 
and that the use for this purpose of public procedures in which inter- 
ested persons are given adequate opportunity to participate be the 
norm, express no preference as among rulemaking, policy statements 
other than rules, or adjudication. The Committee is aware of the view 
sometimes expressed that for the formulation of general policies rule- 
making should be the procedural norm, to be used wherever feasible. 


However, there are probably areas and circumstances in which agen- 
cies can proceed most effectively by developing the law, as courts do, 
through successive adjudications with published decisions. It seems 
neither possible nor desirable to draw any general or abstract line 
separating areas especially appropriate for formal adjudication from 
those more appropriate for rulemaking. Rather than focusing on 
drawing such a line, it seems wiser to move toward a flexibility that 
would make available in each proceeding, no matter how labeled, those 
procedural opportunities and devices most appropriate for the resolu- 
tion of the particular issues involved.^ 

Proposition 3 recommends that in rulemaking proceedings agencies 
provide such procedures beyond those required by statute, including 
where appropriate oral argument or evidentiary presentation or both, 
as would contribute to effective and fair resolution of the specific 
issues. This recommendation is based on the view that, while the Ad- 
ministrative Procedure Act does not and should not require either 
oral argument or an evidentiary presentation in every rulemaking 
proceeding, there are situations in which one or both, addressed to 
some or all issues, may be highly appropriate, if not indeed required 
by an agency's statutory and even constitutional obligations to use its 
discretion reasonably. See American Airlines v. CAB^ 359 F.2d 624, 
631-33 (D.C. Cir. 1966), cert, denied, 385 U.S. 843 (the "Blocked 
Space" case) ; Walter Holm & Co. v. Hardin, 28 Ad. L.2d 505, (D.C. 
Cir. Mar. 19, 1971). Cf. Marum Space Enclosures, Inc. v. FMC, 420 
F.2d 577, 588-90 (D.C. Cir. 1969). 'SVTiere a rulemaking proceeding 
involves a contested issue which has a vital bearing on the reasonable- 
ness of the rule and which is readily susceptible to the taking of evi- 
dence, an agency may well abuse its discretion if it fails to allow for 
evidentiary presentation.* 

Such situations are of particular concern where the proposed rule 
would predetermine significant issues in subsequent formal adjudica- 
tions, and thus moot or frustrate the statutory right to an evidentiary 
hearing in such adjudications. The courts have held that if an entire 
class of persons similarly situated is involved, particularly if the class 
is a large one, an agency may proceed by rulemaking rather than by 
repeated adjudications involving similar or identical issues. United 

* The technique of articulating standards through policy statements other than rules poses 
a danger that public participation will be frustrated by the absence of defined procedures in 
that context. Proposition 2 contemplates, however, that policy-making that establishes 
broadly applicable standards will ordinarily be accomplished through the use of public 
procedures whatever the technique involved. 

* Of course, the agencies have discretion, In rulemaking. In establishing the format for 
taking evidence. If prejudice to a party will not result, submission of evidence in written 
form may be prescribed. 5 U.S.C. 556(d) ; see Long Island R.R. Co. v. United States, 318 
F. Supp. 490 (E.D.N.Y. 1970) (per Friendly, J.). 


States V. Storer Broadcasting Co., 351 U.S. 192 (1956) ; American 
Airlines v. CAB., supra., and cases cited therein, 359 F.2d at 628-29 ; 
Regular Common Carrier Conference v. U.S., 307 F.Supp. 941 (D.D.C. 
1969). In general, the results reached by the courts seem sound, but as 
intimated in the "Blocked Space" case, siipi^a., 359 F.2d at 631-33, 
such a situation may impose upon the agency an obligation to supple- 
ment the minimal rulemaking procedure required by statute with pro- 
cedural devices adequate for the resolution of the issues presented. 
Proposition 3 recommends that agencies provide such supplemental 
procedures wherever appropriate, either by publishing general pro- 
cedures or promulgating them for particular cases. 

For example, where a showing is made that a proposed rule would 
predetermine issues in subsequent formal adjudications, a party may 
well be entitled to an evidentiary hearing if that party makes a sub- 
stantial offer of proof of facts material to such issues. Cf. Long Island 
R.R. Co. V. United States, supra, note 4. Since the offer of proof is 
crucial to the appropriateness of granting a hearing in these or similar 
circumstances, the agency should ordinarily articulate its reasons in 
any decision rejecting an offer of proof as insufficient basis for pro- 
ceeding to a hearing. 

Proposition If. recognizes that, while general rules are necessary, ex- 
ceptional cases do arise, and the existence of a reasonable opportunity 
for requesting an exception to or waiver of a rule is a necessary ingredi- 
ent of a fair and orderly system of rulemaking. The very legitimacy 
of the use of rule making to formulate general policy which affects 
individual rights has been recognized by the courts to rest largely 
on the availability of a reasonable and effective waiver procedure. 
United States v. Storer Broadcasting Co.. sup^^a. 351 U.S. at 204-05 ; 
FPC V. Texaco, Inc., 377 U.S. 33, 40-41 (1964). While the need for a 
meaningful waiver procedure is particularly acute in the case of rules 
that may limit or impinge upon what would otherwise be a statutory 
right to an adjudication, the need is not so limited; an agency should 
make available such a procedure whenever consideration of the 
grounds urged to justify a waiver would be in the public interest. 
560 Broadcast Corp. v. FCC, 418 F.2d 1166 (D.C. Cir. 1969). 

Of course a waiver, or a hearing on a waiver request, cannot be had 
for the mere asking. The arguments advanced for a waiver must be 
"substantially different" from those considered in making the rule. 
Industrial Broadcasting Co. v. FCC, 437 F.2d 680, (D.C. Cir. Decem- 
ber 16, 1970). The applicant must show colorable grounds for his 
request, and if he demands a hearing he must offer to show pertinent 
contested facts which, if proved, would justify the waiver. E.g.. Rio 
Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. 


Cir. 1968). On the other hand, an agency must consider a waiver 
application on its merits and give a meaningful statement of its 
reasons if it rejects it. WAIT Radio v. FOC, 418 F.2d 1153 (D.C. Cir. 
1969) ; Community Service, Inc. v. United States, 418 F. 2d 709 (6th 
Cir. 1969). 

It should be noted that Proposition 4 relates to a proceeding in 
which a party is seeking relief, as defined in 5 U.S.C. 551(11) ; it does 
not apply where a party is resisting the imposition of a sanction. 
Thus the recommendation would not permit a person to ignore a rule 
until enforcement is sought and then to claim the right to show that 
the rule should not be applied to him. Of course, a party to a proceed- 
ing to enforce a rule against him retains all factual and legal defenses 
that would be available in the absence of the recommended waiver 

Proposition 'o looks to another aspect of the general concept, namely 
the procedures appropriate where agency policy innovations are 
articulated in an adjudication involving one or a few parties. As has 
been stated, the Committee recognizes that an agency may be justi- 
fied in preferring to formulate its general policies on a case-by-case 
basis rather than by rulemaking. Cf. NLRB v. Wyman-Gordon Co., 
394 U.S. 759, 764-66 (1969). When an agency so acts, safeguards are 
necessary to ensure that persons not parties to the adjudication who 
may be significantly affected by the new departures in policy have an 
opportunity to be heard. Such safeguards are desirable not only to 
protect individual rights by also to give the agency the benefit of 
partinent facts and considerations not before it which interested per- 
sons could contribute. Concepts of standing and intervention are being 
broadened significantly by the courts,^ and discretionary action by 
agencies to admit additional parties at the hearing stage may some- 
times be effective and desirable. On the other hand, the conduct of 
adjudications, particularly in agencies having a large docket of formal 
adjudications, may be slowed or hampered by the introduction of ad- 
ditional parties. 

The Committee, influenced by comments from a broad range of 
agencies, concluded it should not recommend the admission of addi- 
tional parties at the hearing stage as a general matter. Rather, 
Proposition 5 recommends that if the decision in a formal adjudication 
expresses a new or significantly altered principle or policy, which 
would have broad application, the agency should consider, on its own 

° See, e.g., Ass'n of Data Processing Service Organization h v. Camp, 397 U.S. 150 (1970) ; 
Scenic Hudson Preservation Conference v. FPC, 354 F. 2d 60S (2(1 Cir. 1965) ; United 
Church of Christ v. FCC, 359 F. 2d 994 (D.C. Cir. 1966). Cf. Citizens to Preserve Overton 
Park V. Volpe, 39 U.S.L.W. 4287 (Sup. Ct. March 2, 1971). 


motion or on petition of any person who may be affected thereby, 
whether it would be appropriate in the circumstances to afford affected 
persons an opportunity to participate in the development of such 
policies. Techniques which the agency may wish to consider would 
include: (a) an opportunity to file a brief amicus curiae while the 
proceeding is pending or on petition for reconsideration; and (b) the 
initiation of a rulemaking proceeding, following final termination of 
the proceeding, to determine the extent to which such decision should 
be applicable to persons other than the parties to the adjudication. In 
either event, the agency should provide appropriate procedures 
(whether or not required by statute for rulemaking) whereby inter- 
ested persons can participate in the proceeding. 

The choice of means in such situations, as well as the basic determi- 
nation of need for further proceedings, must be within the agency's 
sound discretion, and would likely vary considerably depending upon 
the circumstances. In many cases, presentation of argument — essen- 
tially the role of atnicus curiae — in either oral or written form will 
suffice. But if interested persons, in addition to advancing arguments, 
make substantial offers of proof of material facts, an evidentiary 
hearing may be necessary. 



Stephen Kurzman' 


The Committee on Grant and Benefit Programs has engaged in an 
extensive and lengthy study of the administration of discretionary 
grant programs by Federal agencies. Mr. Stephen Kurzman, formerly 
of Kurzman and Goldfarb, Washington, D.C., but recently named 
Assistant Secretary for Legislative Affairs of the Department of 
Health, Education, and Welfare, assisted the Committee as a consult- 
ant in the conduct of this study. 

The Committee has concluded that : 

— Agencies that administer grant programs employ disparate and 
sometimes inadequate procedures in notifying applicants of avail- 
able funds, stating policies for award of grants, informing appli- 
cants of actions taken on applications, and other matters. 
— Adoption of more uniform, minimum procedures would be 
helpful to the agencies and would assist applicants, who often 
must deal with a number of different agencies. 

The Committee has formulated a number of minimum procedures 
which, if adopted by agencies administering discretionary grants, 
would benefit the general public and the agencies themselves. Because 
the principles are applicable to a large number of agencies and pro- 
grams, agencies must have some discretion to determine the extent 
to which each proposal is applicable to a particular grant program. 
But any departure from these basic, minimum procedures should be 
accompanied by a clear showing of justification by the agency. 

• Attorney, Washington, D.C., Consultant to Committee on Grant and Benefit Programs. 



Grant programs of the Federal Government abound in variety and 
number. Any attempt to define a "grant program" is hazardous, since 
claims, benefits, and subsidies share many of the characteristics of 
grant programs. The proposed recommendation applies to all grant 
programs which involve the exercise of some discretion in their admin- 
istration. It is not intended to apply to Federal grant-in-aid programs 
that are wholly mandatory, ^.e., dispensed in accordance with a statu- 
tory formula without any discretion on the part of the agency. 

The Conference recommendation is addressed to all agencies that 
administer grant programs of this character and is premised on the 
theory that each such agency has adequate statutory authority to imple- 
ment the recommendation without further legislation. The recommen- 
dation could also be implemented by legislation or, at least in part, 
by executive order. The most discriminating application of the prin- 
ciples implicit in the recommendation, however, can be made by the 
agencies themselves. Thus it is contemplated that each affected agency 
should review and revise its procedures to achieve the objectives of 
the recommendation to the maximum extent feasible. 

By statute the Chairman of the Administrative Conference is 
charged with the responsibility to encourage agencies to carry out the 
recommendations of the Conference. Should the Chairman believe it 
necessary, he should, without further Conference action, consider the 
advisability of legislation, an Executive Order, or other administrative 
arrangements for securing compliance as may seem desirable. 

1. Public Notice 

Agencies should publish a notice in the Federal Register 
{or in other publications that,, in the judgment of the agency, 
have ivider distribution among potential grantees) of the 
availability of grant funds at the outset of a neiv grant pro- 
gram, each time additional funds become available, and each 
time a deadline is established for submission of applications 
for funds. When an agency elects to publish elsetchere than in 
the Federal Register, it should publish in the Federal Register 
a statement specifying the other publication or publications in 
which it will publish. 

1. Need 

There is presently no single avenue for potential grantees under 
P ederal programs to keep abreast of the availability of grant funds. 
The Catalog of Federal Domestic Assistance, now published in loose- 


leaf form by the Office of Economic Opportunity, is the most compre- 
hensive available listing of Federal grant programs, but the Catalog 
does not attempt to provide current information to grantees on the 
availability of grant funds or of impending deadlines, except where 
deadlines have been established on a fixed schedule.^ Because of the 
delays in the Congressional enactment of appropriation bills in recent 
years, granting agencies have been forced increasingly to abandon 
fixed deadlines for grant applications and potential grantee are ac- 
cordingly in greater need of more current information about the avail- 
ability of funds. 

At present, agencies use a variety of techniques for informing their 
potential grantee consituencies. In some cases, even major programs 
rely strictly upon special interest groups to spread the information. 
The result is haphazard coverage depending upon membership in 
associations or retention of grant counselors or attorneys who can pro- 
vide current information through constant personal contact with the 
granting agencies. Agencies occasionally use news releases or newslet- 
ters, sent to the press or to those who happen to be on the agencies' 
mailing lists. Such information is often reprinted in professional or 
trade association journals, but the availability of these documents gen- 
erally requires membership in the association. The journals may or 
may not carry timely information, and the information republished 
is seldom comprehensive. For example, notices of new air-pollution- 
control grant programs are generally published in the monthly maga- 
zines of the National League of Cities/U.S. Conference of Mayors and 
of the Air Pollution Control Association. Nevertheless, air pollution 
control officials state that occasionally, particularly after a change in 
local political administration, a small town or county will complain 
that it did not know about the existence of a program or of the avail- 
ability of particular funds. Where the grantee constituency consists of 
even larger numbers of private institutions or individuals, the need for 
some uniform and unified technique for ascertaining the availability of 
grant monies, and the deadlines for applying for them, is even more 
acute than in the case of relatively more sophisticated, and less 
numerous, public bodies. 

2. Analogies 

Contracting and licensing laws and regulations require that general 
announcements be made of the availability of proposed contracts and 

' S. 718, 92nd Congress, First Session, would require publication of the catalog, trans- 
mission of it to the Congress annually, and revision on a quarterly basis. 


licenses so that potential applicants may be informed. For example, 
regulations issued under the Public Contracts Act, 41 U.S.C. §§ 251-60, 
require that where competitive bidding is required, proposed procure- 
ments "be publicized [in order] to increase competition." 41 C.F.R. 
§ 1-1.1001. The Secretary of Commerce is empowered to obtain notice 
of certain proposed procurement actions from any Federal agency 
and to publish such notices in the Department of Commerce Synopsis. 
41 C.F.R. § 1-1.1003-1. Agencies are required to maintain a reasonable 
number of copies of each invitation for bids and request for proposals 
published in the Department of Commerce Synopsis and to provide 
them for perusal by interested businesses, trade associations and others 
who disseminate such information. 41 C.F.R. § 1-1.1002. 

Similarly, licensing agencies may not grant a licensing application 
until the public has been notified of the pending applications. For 
example, under the Atomic Energy Act, no license for a utilization or 
production facility for the generation of commercial power may be 
issued until the Commission "has published notice of such application 
once each week for four consecutive weeks in the Federal Register and 
until four weeks after the last notice." 42 U.S.C. § 2232(c). The 
Federal Communications Commission may not grant a license for the 
operation of a radio station "earlier than thirty days following issuance 
of public notice by the Commission of the acceptance for filing of such 
application or of any substantial amendment thereof." 47 U.S.C. 
§ 309(b). 

3. Agency Reactions 

Of thirteen agencies canvassed in writing on the original version of 
this proposal, five accepted the proposal in principle. Of the agencies 
objecting to the proposal, two stated that the Federal Register is not 
read by their grant constituencies. These comments apparently over- 
looked the parenthetical phrase in the proposal which authorizes 
publication in documents which the agency decides has wider distribu- 
tion among its potential grantees than the Federal Register. Most of 
those who objected stated that existing methods of publication were 
adequate but gave no further reasons. Some indicated that such infor- 
mation was already available "on request" but did not deal with the 
problem presented to potential grantees who may have to thread 
through dozens of different agencies in order to obtain the information 
they seek. 

uniform minimum procedures 185 

2. Development of Criteria by Rulemaking 

Unless otherivise provided by statute^ agencies should issue 
regulations^ pursuant to the notice and opportunity to com- 
ment provisions of the Administrative Procedure Act {5 
U.S.C. §553), specifying: (a) the procedures to he followed 
by applicants, and (b) criteria or standards, and priorities 
among criteria or standards, for the selection of gra/ntees 
under each grant program. Agencies should review cmd, when 
appropriate reissue such regulations at least once every five 

1. Need 

Agencies now vary widely in their practices concerning the develop- 
ment of criteria and standards applicable to grant programs. In 
many, but by no means all, instances, agencies provide some procedural 
guidance to potential applicants in the form of pamphlets, brochures, 
guidelines, or, occasionally, regulations. In a smaller number of cases, 
agencies provide some guidance to potential applicants with regard to 
the criteria or standards the agencies will use in the selection of 
grantees under some, if not all, of the provisions of law they adminis- 
ter. As in the case of procedural rules, the form in which standards or 
criteria are published also varies widely. Apparently, even where pub- 
lication is made in the form of regulations, agencies do not always treat 
the regulations as covered by the Administrative Procedure Act and 
publication prior to effectiveness and an opportunity for comment are 
not generally provided.* 

The Social and Rehabilitation Service of HEW may be typical. 
SRS administers approximately 64 grant programs in the areas of 
public welfare, social work and vocational rehabilitation, some 34 of 
which are characterized internally as "project grant programs." In 25 
of these 34 project grant programs, regulations have been issued. Yet 
in eight of these instances, the regulations list only some factors or 
criteria, not all; in five instances they provide neither factors nor 

* Recommendation No. 16 of the Administrative Conference of tiie United States would 
repeal the statutory exemption of grants from 5 U.S.C. § 553, thereby requiring publica- 
tion and opportunity for comment when rulemalcing regulations are issued regarding grants. 
Recommendation 16 would not, however, require the issuance of such regulations. Nor 
would it answer the fundamental question, which is discussed in detail hereafter with 
regard to Proposal 5, pp. 14-17, about the applicability of the A. P. A. to grants In the 
first instance, apart from the § 553 exemption language. 

493-361 O - 73 - 13 


criteria but only examples of acceptable projects; and in only five 
cases do the re^ilations establish priorities among the listed factors or 
criteria. In most cases the regulations are quite unspecific, and in some 
instances merely refer to other policy determinations of the agency 
which may or may not be published. In another area of substantial 
grant-making, education, regulations have been promulgated, both as 
to substance and procedure, in most programs but not in all. In only 
one case, that of the Higher Education Facilities Act, does the 
authorizing statute itself require promulgation of regulations. 20 
U.S.C.§ 717(a), (b). 

However, even where educational grant regulations have been issued, 
the APA pre-effectiveness publications-and-comments procedure 
has not been followed. Instead, the HE"\Y internal manual of proce- 
dure informally requires, except for good cause, submission of pro- 
posed regulations affecting State and local programs to the Advisory 
Commission on Intergovernmental Relations for comment. Another 
informal comment process is sometimes followed in the case of fellow- 
ship regulations, Avhich may be circulated in draft form among uni- 
versities and education groups. 

It should be noted that the Freedom of Information Act, 5 U.S.C. 
§ 552, may have a bearing on the need for this proposal. With regard 
to procedural regulations, subsection (a) (1) of the Act would appear 
to require each agency to specify (1) the way in which the public may 
go about obtaining information, make submittals or requests, or obtain 
decisions; (2) statements about its general methods and procedures; 
(3) rules of procedure and descriptions of forms available; and (4) 
substantive rules of general applicability and statements of general 
policy. Subsection (a) (I) (C) of the Act appears to imply that agen- 
cies must ado])t ''rules of procedure"; however, the subsection does 
not state that the rules must be adopted either in the form of regula- 
tions or pursuant to the rulemaking procedures of the A.P.A. (5 U.S.C. 
§ 553). "With regard to procedural rules, therefore, the proposal ap- 
pears to go beyond existing law by providing an opportunity to poten- 
tial applicants and others who might be affected by the agency's pro- 
cedural rules, to participate in the rulemaking as provided for by 
section 553. With regard to substantive regulations, the Freedom of 
Information Act (5 U.S.C. § 552(a) (I) (D) refers to "substantive rules 
of general a})plicability" but includes only those rules "adopted as 
authorized by law." In this case, some other law requiring the adoption 
of substantive rules appears to be necessary and the proposal would 
satisfy this requirement. 


2. Analogy 

Regulations issued under the Public Contracts Act require that invi- 
tations for competitive bids include the criteria which will be used 
to select the successful bidder, as well as the procedures to be followed 
by bidders. "Special technical qualifications" required of bidders must 
be spelled out. 41 C.F.R. § 1-2.201(16). Time of delivery or perform- 
ance must be specified in the invitation, as well as whether alternative 
bids may be submitted by a single bidder. 41 C.F.R. § 1-201(8), (10). 

3. Agency Reactions 

Of 13 agencies canvassed in writing, four accepted the original pro- 
posal in principle and one gave no opinion. Of those which objected 
to the proposal, most stated that the procedure would be too time- 
consuming and that criteria or standards for grant-making are too 
subjective to be incorporated in regulations. On the other hand, other 
agencies objected because regulations were already required by their 
authorizing statute or, in one case, by the Freedom of Information 
Act. One agency, which objected in writing, subsequently reflected 
acceptance of the proposal in principle during in-depth interviews; 
in two such subsequent interviews, strengthening amendments were 

3. Avoidance of Conflict of Interest 

Unless othenoise provided hy statute^ non-Federal person- 
nel utilized hy granting agencies in the process of selecting 
grantees from among applicants should he disqualified from 
participating in regard to applications hy organizations laith 
whom, they are connected or individuals to lohom they are 
related^ and in regard to grant applications of their oion that 
are competing for the same fumds. 

1. Need 

Many grant programs, particularly those which follow the model 
of the research grant programs administered by the National Insti- 
tutes of Health, use advisory councils or committees as screening 
groups at one or another stage of the selection process. Private sector 
personnel utilized as members of these advisory councils or committees 
are usually academic specialists in a discipline related to the grant 


subject. In some instances they are treated as consultants to the grant- 
ing agency and compensated on a per diem basis; in other instances 
they are not compensated for their time but are reimbursed only for 
travel and other out-of-pocket expenses; in a few instances they are 
not compensated or reimbursed in any way. 

The applicability to such council or committee members of existing 
conflict-of-interest legislation (18 U.S.C. §§ 201 et seq.) is unclear, as 
is the reach of existing law if it is applicable. Section 202 defines as a 
"special Government employee" an 

"officer or employee of the executive branch of the United States Govern- 
ment. . . ., who is retained, designated, appointed, or employed to perform 
with or without compensation, for not to exceed one hundred and thirty 
days during any period of three hundred and sixty-five consecutive days, 
temporary duties either on a full-time or intermittent basis. . . ." 

Section 203 prohibits special Government employees from directly 
or indirectly receiving any compensation for any services rendered 

"in relation to any proceeding, application, request for a ruling or other 
determination, contract, claim, controversy, charge, accusation, arrest, or 
other particular matter in which the United States is a party or has a direct 
and substantial interest, before any department, agency . . ." 

Section 208 prohibits a special Government employee from partici- 
pating "personally and substantially" in any matter in which, to his 
knowledge, he, his spouse, minor child or partner has a financial inter- 
est, or in which "an organization" with which he is connected or is 
seeking employment has a financial interest. Section 208(b) permits 
the agency to grant an ad hoc exemption if the outside financial inter- 
est in a matter is deemed not substantial enough "to affect the integrity" 
of his services. The sole sanction for violation of sections 203 and 208 
is criminal prosecution. 

Executive Order No. 11222, 30 F.K. &469, issued on May 8, 1965, 
also imposes requirements upon a "consultant, adviser, or other 
special Government employee" to avoid "private gain for himself or 
other persons, including particularly those with whom he has family, 
business, or financial ties." (Part III). The Executive Order requires 
the filing of a statement of financial interests and of all other employ- 
ment on the part of each consultant, adviser, or other special Govern- 
ment employee. The Executive Order does not specifically require, as 
do section 208 and the proposal, disqualification of a special Govern- 
ment employee from acting on any matter in which he or his insti- 
tution may have an interest, direct or indirect. Neither the statute 
nor the Executive Order specifically mentions grant activities in 
any respect, although both contain general terms which might be 
deemed to include grants within their coverage. HEW conflict of 
interest regulations (45 C.F.E. §§ 73.735-1101 et seq.) are similarly 



unclear with respect to members of advisory committees or councils 
which screen grant applications. However, the HEW regulations are 
more specific with regard to the remedies available if the financial 
statement should reveal a potential conflict of interest: "disqualifi- 
cation for a particular assignment" is specifically provided for. 45 
C.F.R. § 73.735-1102 (a) (2). HUD conflict of interest regulations con- 
tain similar provisions. 24 C.F.R. § 0.735-411. 

There appears to be no uniformity among agencies in their treat- 
ment of advisory committee or council members under existing law 
and regulations. In the case of air pollution control, for example, re- 
search grant review committee members are treated as consultants 
when they attend review committee meetings and are paid $75.00 
per day and expenses during such meetings ; but they receive no com- 
pensation for the often extensive time required prior to such meetings 
in reviewing applications. As paid consultants, the review committee 
members might well be considered "special Government employees" 
under the law and Executive Order. However, many review committee 
members are said to be principal investigators under air pollution 
control grants. It is unclear whether the agency believes that the 
existing law and regulations are inapplicable to review committee 
members or whether, even if they are applicable, the existing provisions 
prohibit the members from advising on programs for which they have 
themselves submitted grant applications. 

In view of these uncertainties, clarification would be desirable on 
two points : first, that conflict of interest statutes, the Executive Order 
and regulations do apply to private sector personnel who serve on 
committees or councils on grant applications ; and second, that mem- 
bers of such councils or committees should be disqualified from partic- 
ipating in regard to applications by organizations with whom they 
are connected or individuals to whom they are related, and in regard 
to grant applications of their own that are competing for the same 

2. Analogy 

HEW regulations already appear to recognize the potential for 
conflict of interest where a special Government employee is himself 
a grantee or potential grantee. While the HEW regulations provide 
that a special Government employee, other than a consultant, need 
not submit a statement of financial interests, the regulations also 
provide that such an employee may be required to submit the state- 
ment in particular cases. As an example, the regulations state that a 
special Government employee may be required by the Department to 
submit a financial interest statement if : 


"The performance of his Department duties could directly and predict- 
ably affect a person or organization that is known to : Have a grant from this 
Department or contract with it ; be seeking or negotiating such grant or 
contract ;...." 

45 C.F.E. 73.735-1206 (a) (1). Another categ^ory of special Govern- 
ment employees who may be required to submit financial statements, 
according to tlie HEW regulations, includes 

"those whose principal non-Government occupation is : On or concerned 
with work for the Government or supported in whole or in part by the 
Government under grant or contract; . . Z" 4") C.F.R. 73.735-1206(a) (2). 

4. Agency Reactions 

Of thirteen agencies canvassed in writing, nine accepted the original 
proposal in principle, two reported that it was inapplicable to their 
programs and one gave no opinion. The only agency whicli opposed 
the proposal flatly stated : 

Advisors are chosen for excellence and expertise in a particular area, the 
same criteria used to award grants. The proposed limitations on the availability 
of non-Federal personnel would either prevent many needed applicants from 
receiving assistance or would discourage the valuable contribution these in- 
dividuals presently make in their advisory capacity. It would be unfortunate 
to deny the Government the service of individuals of excellence in one capacity 
so as to have it in another. 

"Granting agencies already provide, under conflict of interest standards, that 
an advisor not participate in consideration of their applications, applications 
of relatives or applications of their own institutions." 

Clearly the policy reflected in the last sentence is consistent with the 
proposal here advanced. 

Another agency which found the proposal acceptable, suggested that 
the word "projects" be substituted for the word "programs" in order 
to avoid disqualifying for research grants many of the "most A'alued 
members of the (agency's) review panels." 

4. Notification of Applicants 

Agencies should notify applicants in writing of the awards 
rejection, modification, non-renewal or termination of grants^ 
or the disaJJoicance of expenditures under grants, specifying 
the grounds for such action. A more detailed statement of rea- 
sons should he made available upon request hy the applicant. 

1. Need 

Not all agencies notify applicants in writing of the actions taken on 
their applications. Instances have been reported, for example, in 


which applicants have been forced to inquire about pending applica- 
tions and would otherwise have no knowledge of the fact that their 
applications have been denied or have been put in an inactive status. 
More commonly, however, the rejected applicant is advised in writing, 
but the notification is little more than a conclusory statement that his 
application has been rejected after consideration of all applications 
and in view of budgetary limitations. For example, in the case of air 
pollution control grants, applicants are advised of rejected research 
grant applications only by a statement that their proposed research 
grant did not receive recommendations for approval from the national 
advisory council and that decisions "represent value judgments of a 
very difficult nature." In some instances, a research applicant is advised 
that the council recommended approval, but insufficient funds exist to 
"assure payment" and the applicant will be notified if it is "determined 
that award can be made." Air pollution control persoimel indicate 
that only occasionally will a rejected applicant reply asking for greater 
specificity ; eighty to ninety percent of those rejected do not inquire 
further. In the area of HEW education grants, notification is generally 
given to rejected applicants but the reasons given are usually vague, 
often merely that the project did not indicate as much relative promise 
as those projects which were funded. In general, current practice 
appears to be to provide greater information on rejections to project 
grant applicants, which are usually institutions, than to research grant 
applicants, who are usually individuals. In current practice, appar- 
ently, reasons for making grant awards are rarely given. The result, in 
general, is that rejected applicants generally have little or no basis for 
determining whether the agency rationally applied its authorizing 
statute and its other standards or criteria to his case, or to the cases of 
competing applicants who were successful. 

2. Analogies 

Under the Administrative Procedure Act, 5 U.S.C. § 557(c), in in- 
stances of formal rulemaking and adjudications, all decisions must 

"a statement of — 

(A) findings and conclusions, and the reasons or basis therefor, on all 
the material issues of fact, law, or discretion presented on the record ; and 

(B) the appropriate rule, order, sanction, relief, or denial therof." 

In matters covered by that section, in other words, the parties, the 
public, and the courts are entitled to know the rational nexus between 


the agency's a<:tion and its underlying authority to act. See Baltimore 
and Ohio Company v. Aberdeen and Rockfish Railroad Company^ 
393 U.S. 87 {\^%^), rehearing denied, 393 U.S. 1124. A similar require- 
ment appears to be in the process of development by the courts in the 
case of public contracts. See Scanioell Laboratories, Inc. v. Thomas, 
424 F. 2d 859 (D.C. Cir. 1970) . 

3. Agency Reactions 

Of thirteen agencies canvassed in writing on the proposal, two gave 
no opinion and nine accepted the proposal in principle. Five agencies 
indicated that they follow this practice at present. However, one of 
the five indicated that articulation of reasons for rejection would often 
be embarrassing to granting agencies. Another indicated that giving 
reasons for rejections would be unnecessarily burdensome to the 
agency. On the other hand, still another of the five stated that grantees 
who receive an award do not need to be specifically informed of the 
reasons for the award. One respondent indicated that most agencies 
already provide applicants with notification of their action but ex- 
pressed reservations on the proposal if all agencies were required to 
provide explanations, particularly on rejections. Its grounds for this 
position were "the threat of much time-consuming labor" and "deci- 
sions of advisors and agency heads would be subject to considerable 
question, objection and dissatisfaction." This agency indicated further 
that most of its sub-agencies provide reasons for rejections only on 
specific request. As stated above, agencies appear willing to reveal 
reasons for award, rejection, etc., of project grant applications but are 
often unwilling to do so in the case of research applications, except 
upon specific request and. even then, not in all instances. This distinc- 
tion appears to be based on several factors : the much larger volume 
of individual research applications as compared with project grant 
applications (some 30,000 research grant applications per year to the 
National Institutes of Health alone) ; the desire to protect academi- 
cians who serve on advisory councils from criticism of their comments 
on particular applications; and the desire to protect individuals from 
exposure of adverse opinions on their applications. 

The recommendation would accommodate these difficulties by pro- 
viding that only the grounds for the action need be stated (which could 
be done on a check list) and that greater detail would be furnished 
only on request. 


5. Public Information 

Unless otherwise provided hy statute and subject to the exemp- 
tions contained in the Freedom of Information Act, S V.S.C. 
§ 552(b), agencies should maintain and make available to public 
inspection the notifications specified in paragraph ]^. 

I. Need 

There is presently considerable doubt as to the coverage of grant 
documents by the Freedom of Information Act, and agency practice 
varies widely. The statute provides : 

"Each agency, in accordance with published rules, shall make available 
for public inspection and copying — 

(A) final opinions, including concurring and dissenting opinions, as 
well as orders, made in the adjudication of cases ; 

(B) those statements of policy and interpretations which have been 
adopted by the agency and are not published in the Federal Register; 

(C) administrative staff manuals and instructions to staff that affect 
a member of the public ; 

Unless the materials are promptly published and copies offered for sale." 
5U.S.C. § 552(a) (2). 

Grant applications, advisory council evaluations, staff evaluations, 
documents notifying applicants of award, rejection, etc., protests by 
applicants to the agency as a result of agency action, do not appear 
to fall clearly within any of subsections (A), (B), or (C) of this 
provision. The closest category appears to be subsection (a), at least 
with regard to agency notifications of award, rejection, etc., but this 
would require interpretation of "adjudication of cases" so as to in- 
clude grant decision-making. Yet the terms "adjudication" and "cases" 
would appear to be terms of art not obviously applicable to grant 
decision-making. "Adjudication" is defined in the A.P.A. as an 
"agency process for the formulation of an order." 5 U.S.C. § 551(7). 
And "order" is defined in turn as 

"the whole or part of a final disposition, whether afl!irmative, negative, in- 
junctive, or declaratory in form, of an agency in a matter other than rule 
making but including licensing." 5 U.S.C. § 551(6). 

Even if the award, rejection, etc., of a grant may be considered to 
be the "formulation of an order" so defined, the additional phrase "of 
cases" in section 552(b) would appear to narrow the coverage further 
so as to exclude grant-making. 


The Attorney General's Memorandum interpreting the Act men- 
tions grants in only one sentence and that sentence indirectly suggests 
that grants are not covered by section r)52(a) (2). In a paragraph 
dealing with the necessity to publish general descriptions of internal 
management functions under section 552(a) (1) of the Act, the Memo- 
randum states as an aside : 

"Of course, functions such as adjudication, licensing, rulemaking, and loan, 
grant and benefit functions are within the publication requirements of 
(section 5r)2(a) (1) (B) except as they are exempted under subsection (b)." 
Attorney General's Memorandum on the Public Information Section of the 
Administrative Procedure Act, June 1967, p. 8. 

This sentence appears to have the etfect of including grants under 
the first part of the Act, subsection (a) (1), but excluding grants from 
the second part, subsection (a) (2). The inference is strengthened by 
the distinction between ''adjudication,** which is stated separately 
from "grant and benefit functions.*' As noted above, "adjudication of 
cases*" is the operative phrase in subsection (a) (2). 

As is demonstrated below in the agency reactions, the result has 
apparently been considerable confusion within agencies as to the 
applicability of the Act to various types of documents involved in 
the grant process and considerable variation in handling such matters. 
Initial litigation under the Act does not appear to have reached the 
question of grants as yet. Under the circumstances, it would appear 
highly desirable to clarify the applicability to grants of the principle 
of disclosure embodied in the Act, subject to the specific exemptions 
already set out in Section 552(b) of the Act. 

Under the exemptions of this section, which the proposal incorpo- 
rates by reference, a number of documents, or parts of documents, 
related to the award, rejection, modification, etc., of grant applications 
would be protected from disclosure. For example, grant applications 
often include disclosures which might be considered trade secrets and 
commercial or financial information which is privileged or confidential. 
If, as is commonly the case, an agency notification of award in- 
corporated the grant application by reference, disclosure of the noti- 
fication would be prohibited under the exemption except to the extent 
that the documents could be scrubbed of the trade secret or confiden- 
tial information. Current litigation indicates that the courts will re- 
quire disclosure under the Freedom of Information Act of those parts 
of documents which do not contain exempted material. See Grumman 
Aircraft Evgiveer. Corp. v. Renegotiation Board, 425 F. 2d 578 (D.C. 
Cir. 1970) . Similarly, advisory committee and staff evaluations of grant 
proposals would probably be protected from disclosure, at least in part, 
under the inter-agency or intra-agency memorandum exemption. 


Again, current litigation indicates that the courts will construe this 
exemption narrowly, exempting documents which were part of the 
agency's "deliberative process" but not those which set forth the factual 
basis or findings upon which the agency based its decision. Consumers 
Union of United States^ Inc. v. Veterans Administration^ 301 F. Supp. 
796,805 ( S.D.N. Y. 1969). 

2. Analogy 

Regulations issued under the Public Contracts Act require that 
notice be given to unsuccessful bidders, along with the reasons for 
rejection, in general terms, whenever the contracting officer has reason 
to believe that the bidder may protest the award. The agency must 
also furnish to unsuccessful bidders and interested third parties the 
name and address of the successful bidder, the contract price, and the 
location of an abstract of the bids, which must be available for inspec- 
tion by unsuccessful bidders as wells as by interested third parties. 41 
C.F.R. § 1-2.408. 

3. Agency Reactions 

Of thirteen agencies canvassed in writing on the original proposal, 
one gave no opinion, and seven accepted the proposal in principle. 
The agency which gave no opinion and three of those which accepted 
the proposal commented that the information would already have to be 
disclosed under the Freedom of Information Act, or would probably 
have to be disclosed under that Act. Of the five agencies which objected 
to the proposal, one referred to its own statute, which specifically pro- 
hibits disclosure of confidential information such as that relating to 
salaries. 18 ILS.C. § 1905. This objection would appear to be met by the 
language of the proposal "unless otherwise provided by statute." Two 
other agencies which objected to the proposal relied upon the Freedom 
of Information Act as prohibiting such disclosures. Another agency 
stated that its files are now available under the Freedom of Informa- 
tion Act but saw the proposal as amending existing legislation to re- 
quire "that consultants' evaluations of proposals be made available to 
the public." As discussed above, the second sentence of the proposal, 
which imports all the exemptions currently in force under the Free- 
dom of Information Act, would appear to meet this objection. Another 
i-espondent objected to the proposal on the ground that under its cur- 
rent regulations, where a grant application has been approved and a 
grant awarded : 


"the application and tlie awarding document are available for disclosure 
unless a research grant is involved. For the latter ease, 45 C.F.R. 5.74 pre- 
cludes disclosure unless the grant research has been performed and a final 
report has been submitted." 

This agency further stated that both rejected and accepted appli- 
cants should be protected against disclosure of "their ideas and such 
things as trade secrets." Again, the second sentence of the proposal 
should meet this objection. 


At the request of the Administration, the Conference undertook a 
detailed study of the report on selected independent regulatory agen- 
cies which had been prepared by the President's Advisory Council on 
Executive Organization, chaired by Roy L. Ash. Three scholars, Pro- 
fessor Nathaniel L. Nathanson of Northwestern University, Professor 
Glen O. Robinson of the University of Minnesota, and Professor 
Norman C. Thomas of the University of Cincinnati, were retained as 
consultants to the Conference for this study. 

The formal views of the Conference on the "Ash Council Report" 
were submitted to the President on May 7, 1971. Subsequently the 
University of Virginia Law Review published a Symposium on the 
Ash Council Report, which included the three studies prepared for 
the Administrative Conference reprinted here (See Va. L. Rev., Vol. 




Nathaniel L. Nathanson* 

THE President's Advisory Council on Executive Organization^ has 
recommended the estabhshment of a new Administrative Court^ to 
review determinations of some of the agencies involved in its proposed 
reorganization of the independent regulatory commissions— namely the 
proposed Transportation Regulatory Agency, Federal Power Agency, 
and Securities and Exchange Agency.^ This Administrative Court pro- 
posal is so intimately related to the proposed reorganization of the in- 
dependent commissions that it cannot be fully considered apart from the 
administrative reorganization. Nevertheless, the principal reasons ex- 
plicitly advanced by the Council for the creation of the Administrative 
Court can be quire separately evaluated. These are, first, that the federal 
courts, especially the courts of appeals, are now staggering under a phe- 
nomenally increasing workload; second, that freeing the regular courts 
from the burden of reviewing a significant volume of administrative de- 
cisions would enable them "to concentrate upon those priority areas in 
which only they can exercise ultimate decision-making responsibility"; 
and, third, that the expertise which the Administrative Court would 
develop in the areas of administrative law and procedure would enable 
it to contribute significantly ro the improvement of the regulatory 

* Professor of Law, Northwestern University. I am indebted to Mr. John ReHas, a 
third-year student at Northwestern Universit}' School of Law, for help in the prepara- 
tion of the original memorandum on which this article is based. I am also indebted 
to the editors of the Virginia Law RezHeiv for helping to transform the memorandum 
into an article. NXJV. 

1 See The President's Advisory Counql on Execvtive Organization, A. New 
Regulatory Framework: Report on Selected Regulatory Agencies (1971) [hereinafter 
cited as Ash Council Report]. 

2 The report suggests that the Administrative Court should consist of judges appointed 
by the President, with the advice and consent of the Senate, for staggered terms of 15 
years. The report also suggests that at the outset as many as 15 judges, sitting in 
three-man panels, would be needed. Ash Council Report, supra note 1, at 55. 

3 The jurisdiction of the Administrative Court would not include review of the 
proposed Federal Trade Practices Agency or of the Federal Communications Com- 
mission; the latter is not affected at all by the proposed administrative reorganization. 
No explanation is given for either of these exclusions from the jurisdiction of the court. 
Id. at 6, 51-58. 


process.^ In addition to these explicit reasons, there appear to be im- 
plicit in the Council's recommendations certain assumptions with respect 
to the relationship which is likely to prevail between the new agencies 
and the reviewing court. These assumptions also require critical ex- 

Relieving the Courts of Appeals 

Although, as the Council's Report notes, the total number of all 
appeals to the United States courts of appeals has more than doubled 
in the last nine years, rising from 4,204 in 1961 to 10,248 in 1969,^ 
the available statistics show that the relative burden imposed by cases 
involving review of regulatory agencies is surprisingly small. During the 
period 1965-69 administrative review cases commenced in the courts 
of appeals accounted for only 16 percent of the total caseload of those 
courts, and over 85 percent of that amount was related to agencies that 
would not be subject to review by the proposed Administrative Court.* 
Furthermore, though the total caseload of the courts of appeals has 
increased phenomenally in the last few years, the number of administra- 
tive review cases has remained relatively constant. Consequently, using 
the average figures for 1969-70, rather than for 1965-69, judicial review 
of the administrative agencies treated in the Ash Council proposal com- 
prises only about 2 percent of the total caseload of the courts of appeals.'' 

4 /c/. at 53-55. 


6 Reports of the Proceedings of the Judicial Conference of the United States, 
Annual Report of the Director of the Administrative Office of the United States 
190, Table B-3 (1969) [hereinafter cited as Annual Report (1969)]. 

''These figures include three-judge district court cases reviewing ICC orders, which 
are also included in the figures cited by the Ash Council Report. In 1969, 176 cases were 
commenced in the United States courts of appeals involving appeals from agencies which 
would fall under the jurisdiction of the proposed Administrative Court. Of these 176 
cases, 10 were appeals from decisions of the Federal Maritime Commission. Letter from 
J.F. Spaniol, Jr., Assistant Director for Legal Affairs, Administrative Office of the 
United States [hereinafter cited as Spaniol Letter]. One hundred thirty-nine were from 
the Federal Power Commission; 16 were from decisions bv the Securities and Exchange 
Commission; and 11 were from decisions by the Civil Aeronautics Board. Annual 
Report (1969), supra note 6, Table B-3. In addition, 96 proceedings in three-judge 
district courts challenging decisions of the Interstate Commerce Commission must be 
added to the 176 total, thus making a total of 272 cases for 1969. Letter from L.S. 
Goodman, Associate General Counsel, Interstate Commerce Commission [hereinafter 
cited as Goodman Letter]. 

In 1970, 70 cases involving appeals from the same agencies were commenced in the 
courts of appeals. Eight of these were from the Federal Maritime Commission. Spaniol 
Letter, supra. Twenty -three were from the Federal Power Commission; 16 from 


Moreover, any proposal for reorganization of the federal courts de- 
signed in part to reduce the caseload now pressing upon the existing 
courts of appeals must be weighed against other proposals designed to 
accomplish somewhat the same objective by curtailing the basic juris- 
diction of the federal courts. Probably the most notable among these 
is the proposal of the American Law Institute for the revision of di- 
versity jurisdiction so as to eliminate cases brought by plaintiffs who 
are citizens of the state in which the suit is brought, or who have had 
for more than two years a principal place of business or employment 
in that state. ^ The commentary accompanying the ALI proposal esti- 
mates that the effect of the proposed revision upon the actual incidence 
of diversity cases in the federal district courts would be to reduce the 
caseload by approximately 50 percent; as applied to the 1968 total of 
21,009, this would constitute an approximate reduction of slightly more 
than 10,000 cases.® 

Just how this reduction would be reflected in the courts of appeals 
is open to speculation, but presumably it is reasonable to anticipate a 
proportionate reduction in diversity cases in the courts of appeals. The 
Annual Report of the Director of the Administrative Office of the 
United States Courts shows 1,233 diversity cases filed in the courts of 
appeals in 1970.^^ A reduction of 50 percent would amount to approxi- 

the Securities and Exchange Commission; and 23 from the Civil Aeronautics Board. 
Rkports of the Proceedings of the Judicial Conference of the United States, 
Annual Report of the Director of the Administrative Office of the United States 
Courts, app. 1, Table B-3 (1970) [hereinafter cited as Annual Report (1970)]. No 
statistics for 1970 were available for three-judge district court proceedings challenging 
decisions by the Interstate Commerce Commission. Taking the average for such cases 
from 1965 to 1969 (107, 112, 98, 114, and 96 respectively), a figure of 105 was ap- 
proximated as the 1970 average, thus making a total of 175 cases for 1970. Goodman 
Letter, supra. 

In 1969, 10,248 cases were commenced in the United States courts of appeals; and in 
1970 there were 11,662, making a total of 21,910 for both years. Annual Report (1970), 
supra, app. 1, Table B-3. In addition, we postulate 201 three-judge district court pro- 
ceedings for both years, making a total of 22,111 cases. During the same two-year 
period 246 cases were commenced in the United States courts of appeals from decisions 
of the Federal Maritime Commission, Federal Power Commission, Civil Aeronautics 
Board, and Securities and Exchange Commission. Adding to this total the 201 three- 
judge district court cases reviewing orders of the Interstate Commerce Commission, we 
find that the workload for the Administrative Court, if it had been in existence in 
1969-1970, would have been 447 cases. This constitutes 2.02% of the total caseload in the 
courts of appeals for those years, plus the three-judge district court cases. 

8 ALI Study of the Division of Jurisdiction Between State and Federal Courts 
1301-07 (1969). 

9 Id. at 4<55-79. 

10 Annual Report (1970), supra note 7, app. 1, Table B-7. 


mately 600 cases. This would compare with a total of 1,522 for all 
administrative appeals," or 175 for appeals from the particular agencies 
with which the Ash Council is concerned, including the ICC cases.^^ 
Thus the reduction in caseload achieved by the ALI proposal would be 
three times the reduction achieved by the Ash Council proposal. Of 
course, the ALI proposal, or any similar reduction in, or elimination of, 
diversity jurisdiction involves a host of difficult and controversial ques- 
tions." Nor is diversity jurisdiction the only aspect of the present dis- 
tribution of judicial power between state and federal courts that has 
been questioned. There are some who believe that a larger measure of 
the enforcement of federal law— particularly the punishment of petty 
crimes— might well be entrusted to the state courts.^^ These particular 
suggestions do not, by any means, exhaust the possibilities of a thorough 
reorganization of the federal courts, resulting in a reduction of the bur- 
geoning caseload.^^ They only illustrate the various alternatives that 
must be painstakingly weighed and the priorities that must be estab- 
lished before a considered judgment can be made with respect to the 
wisdom of even moving in the direction suggested by the proposed 
establishment of a separate administrative review court in the federal 
judicial system. 

The Expertise of the Administrative Court 

In further support of the propos'ed Administrative Court the Council 
suggests that members of the court will develop an expertise that will 
benefit the regulatory process in two ways. First, the court would 
become more efficient in handling appeals; and, second, the court would 
contribute to the development of uniform administrative law and uni- 
form administrative procedures. 

As will be developed more fully larer, the desirability of expertise in 
a reviewing court is at least questionable. The conventional standards 

11 W., Table B-l. ~ 

12 W., Table B-3. 

13 See, e.g., C. McGowan, The Organization of Judicial Power in the United 
States 84-93 (1969); Currie, The Federal Courts and the American Law Ivstitute (pts. 
1 & 2), 36 U. Chi. L. Rev. 1, 268 (1968-69); Wright, Recojistmctlvg Federal Jurisdiction: 
The American Law Institute Proposals, 26 Wash. & Lee L. Rev. 185 (1969). 

14 See, e.g., Anderson, The Problems of the Federal Courts— and How the State Courts 
Might Help, 54 A.B.A.J. 352 (1968); Anderson, The Line Between Federal and State 
Court Jttrisdiction, 63 Mich. L. Rev. 1203 (1965); Smith, A Federal District Judge 
Looks at His Jurisdiction, 51 A.B.A.J. 1053 (1965). 

15 See (larrington, Crowded Dockets and the Courts of Appeals: The Threat to the 
Function of Review and the National Law, 82 Harv. L. Rev. 542 (1969). 

493-361 O - 73 - 14 


for review, the rationality and substantial evidence tests, usually require 
intelligence and judgment rather than expertise. Moreover, the Council 
itself seems somewhat suspicious of the advantages of specialization in 
reviewing judges Avhen it advises against specialized panels within the 
Administrative Court. To the extent that the Administrative Court miorht 
develop a species of expertise through its continuous involvement with 
particular regulatory schemes, it is questionable whether this develop- 
ment would be of great significance in the essential w ork of the court. 
Generally, in reviewing an administrative determination the most im- 
portant function performed by the federal courts is deciding legal ques- 
tions that arise under the relevant legislation. But the art of statutory in- 
terpretation depends on skills which are not significantly enhanced by 
concentration upon a single statute. Indeed, experience suggests that 
subject-matter specialization is little help in this regard.^^ 

The Council's suggestion that the Administrative Court would foster 
both the development of uniformity in administrative substantive law 
and greater uniformity in administrative procedure seems to defy 
analysis. No hint is given as to what the Committee regards as sub- 
stantive administrative law. Perhaps it has in mind the meaning of such 
terms as "reasonable rates," or "pubhc convenience and necessity." If 
so, one wonders what the Administrative Court could usefully add to 
the various Supreme Court interpretations of such terms. As for the 
dev^elopment of uniform procedures, the suggestion seems to ignore both 
legislative requirements such as the Administrative Procedure Act and 
constitutional requirements under the due process clause. It is not ap- 
parent how an Administrative Court could press the agencies toward 
greater uniformity in procedures than is presently required through 
the application of such general standards by reviewing courts, even 
assuming that such an objective is a desirable one. If it is, it would seem 
peculiarly within the competence of the top administrators to accom- 

iG Historically, specialized courts within the federal system have not displayed a 
notable mastery of the art of statutory interpretation. See the discussion of the 
Commerce Court, the Court of Customs and Patent Appeals, and the Emergency Court 
of Appeals at pp. 100?-13 irrfra. Most of the Supreme Court's reversals of the Commerce 
Court decisions turned on disagreements over statutory interpretation. The same was 
true in the case of Emergency Court of Appeals. A recent study of the review 
of the Tariff Commission by the Court of Customs and Patent Appeals suggests that 
this court has experienced relatively little success in working out a consistent and 
satisfactory pattern of interpretation for the statutory framework governing both the 
Tariff Commission and the court. See Metzger & Musrey, Judicial Review of Tariff 
CoTHTfiissicm Actions and Proceedi7igs, 56 Cornell L. Rev. 285 (1971). 


plish, or if necessary, within the competence of Congress by further 
elaboration of the Administrative Procedure Act. 

The Relationship Between the Court and 
THE Regulatory Agencies 

Since in the context of the present relationship between the regula- 
tory agencies and the courts the case for an Administrative Court 
is less than compelling, the Council must have envisaged some radi- 
cal change in the relationship eventuating from other aspects of the 
Committee's recommendations, including, perhaps, a substantial increase 
in either the volume of litigation, or the scope of judicial review, or 
both. An expanded scope of review is rather vaguely suggested in the 
very term "Administrative Court." It is also suggested by the Council's 
reliance on the relative expertise which the court would develop 
through its constant contact with the regulatory process. The Council 
qualifies this emphasis upon expertise, however, by insisting that the 
court should not specialize with respect to the particular branches of 
regulation. In fact, the Council does not explicitly suggest that the 
scope of review would be expanded, either with respect to questions 
of fact or with respect to questions of policy. The silence on this sub- 
ject contrasts with the expressed view that the Administrative Court 
would contribute to uniformity in procedures and in substantive ad- 
ministrative law. Consequently, the assumption that the Con"'"il en- 
visions an expanded scope of review is probably unjustified. 

A more likely possibility is that the Council has assumed that under its 
proposal the caseload of the Administrative Court would be substantially 
higher than the comparable caseload of the federal courts under the 
present system. The entire thrust of the proposed changes in intra-agency 
review seems calculated to achieve this result. The report emphasizes 
that top agency review of hearing officer decisions should be kept to a 
minimum and should be designed simply to ensure that particular deci- 
sions are consistent with general policies. These objectives are furthered 
by the proposal for a 30-day limit on the period in which the Administra- 
tor may act in reviewing such decisions. Though not particularly rele- 
vant for present purpose, the suggestion is irresistable that such a time 
limit, even for the preliminary determination of the decision's consistency 
with agency poHcy, leaving aside the possibility that policy may require 
reevaluation, is not likely to survive the realities of implementation. 
However that may be, the likelihood remains that a substantial curtail- 


ment of intra-agency review of hearing officer decisions will tend to 
increase recourse to the courts. 

This effect will be encouraged by the very appellation of "Adminis- 
trative Court." Review by the court will, at least at the outset, appear 
to be a substitute for review by the Administrator. Whether the court 
will eventually earn the right to be so regarded will depend on whether 
the scope of its review coincides with the expectations of htigants. This 
coincidence, in turn, will depend to some extent upon the statutory terms 
of reference which will control the court and the Supreme Court's in- 
terpretation of the court's mandate. These imponderables make a real- 
istic assessment of the likelihood of the successful operation of such a 
court practically impossible. Nevertheless, it is reasonably safe to say 
that a marked disparity between the obvious expectations of litigants and 
the possibilities of judicial performance is likely to jeopardize the 
success and the popularity of the court. If the general purport of the re- 
organization suggests that the judicial review is to be a substitute for top 
agency review, but the statutory standards as interpreted by the Su- 
preme Court confine the scope of review to conventional standards, the 
prospects for success are far from encouraging. If, on the other hand, 
the standards of review are expanded significantly beyond current stand- 
ards, the prospects for tension between the x\dministrative Court and the 
regulatory agencies are equally discouraging. 

To evaluate this potential for tension, further consideration must be 
given to the details of the relationship bersveen the regulatory agency 
and the reviewing court. In the situation now prevailing the reviewing 
court naturally assumes that the decision under review has the full ap- 
proval of the agency head or heads and is to be accorded the full respect 
such approval ordinarily warrants. This is true even when the agency 
has declined to exercise its review powers, as now happens frequently 
with respect to the decisions of trial examiners in some agencies (e.g., 
CAB) or review boards in others (e.g., FCC). Such approval and re- 
spect is predicated upon a deliberate decision of the agency heads in- 
dicating approval of, or at least acceptance of, the decision below. It 
is hard to believe that top agency review limited to the 30-day period 
suggested by the Council would imply similar deliberate approval or 
warrant similar respect. It is also unlikely that hurried approval or dis- 
approval on the administrative level would exhaust the various issues that 
might later be developed in the review process itself. It is now the con- 
ventional law of judicial review that agency decisions may not be de- 
fended in the courts upon grounds which were neither advanced nor 


apparently considered by the Administrator in the process of decision. 
If this rule is to be appHed to trial examiner decisions so summarily or 
hastily reviewed by the Administrator, the process of judicial review will 
itself suffer from the artificially imposed blinders. If, on the other hand, 
the rule is relaxed so as to permit judicial exploration of issues not fully 
explored in the agency process, in effect the court will be invited to 
substitute new grounds of decision for those avowedly considered by 
the agency at the time of decision. If the agency prevails on these new 
grounds, the private parties concerned are likely to feel that they have 
been short-changed by the Administrator or the court, or both. The 
dilemma appears to be implicit in a system apparently designed to shift 
the major responsibility for the ultimate decision of individual cases 
outside the agency to the courts. 

Historical Analogues 

The ABA and Hoover CoTftrmssion Proposals 

The uncertainties that shroud the actual working relationship that 
would exist between the regulatory agencies and the Administrative 
Court derive from the more fundamental ambiguities inherent in the 
term "Administrative Court" as used by the President's Committee. In 
part, at least, the proposed Administrative Court must be distinguished 
from the kind of administrative court envisaged in earlier proposals 
advanced by the American Bar Association and the Hoover Commission. 
In the original ABA proposal of 1934 and 1936 the "Administrative 
Court" was conceived primarily as a way of achieving the separation of 
judicial functions from prosecutory and legislative functions.^"' Later 
proposals of the Hoover Commission and the Bar Association reflected 
fundamentally the same thinking, although the application of the idea 
was more closely confined. ^^ The bills eventually supported by the ABA 
would have achieved this separation of functions only in the cases of the 
Labor Board and the Federal Trade Commission. The Tax Court was 
also included, in recognition of the fact that this tribunal already re- 

17 See 61 A.B.A. Rep. 218-27, 232-33, 720-94 (1936) (Reports of Special Committee on 
Administrative Law); 59 ABA. Rep. 148-153, 539-564 (1934) (Reports of Special 
Committee on Administrative Law); Caldwell, A Federal Administrative Court, 84 
U. Pa. L. Rev. 966 (1936). 

18 See U.S. Commission on Organization of the Executive Branch of Government, 
Legal Services and Procedure 84-88 (1955); 81 A.B.A. Rep. 378-79 (1956) (Proceedings 
of the House of Delegates) . 


fleeted the kind of separation of functions that proponents of the Ad- 
ministrative Court favored.^® 

The Council's proposals, on the other hand, have no substantial con- 
nection with the separation of functions principle. The single Adminis- 
trator would continue to enjoy full responsibility for the legislative, 
prosecutory, and judicial functions of his agency. He would, however, 
be encouraged to shift as much of the judicial function as possible either 
down to the Trial Examiner or over to the Administrative Court. Con- 
ceivably, the Council's proposal could result in de facto separation of 
most judicial functions outside the hands of the Administrator. Never- 
theless, he would remain titularly responsible for such functions, and in 
extremely important cases he would actually exercise them. Presum- 
ably he would also exercise rule-making powers. The Administrative 
Court would therefore, theoretically at least, be reviewing the exercise 
of the Administrator's quasi- judicial and quasi-legislative powers. Con- 
sequently, the Administrative Court here proposed cannot easily be 
assimilated to the administrative courts envisaged by the Hoover Com- 
mission and the ABA. 

The Cofnmerce Court 

Apart from the name "Administrative Court" and the suggested 15- 
year term of the judges, the proposed Administrative Court may more 
appropriately be considered as comparable to other specialized appellate 
federal courts, such as the United States Commerce Court, the United 
States Court of Customs and Patent Appeals, and the United States Emer- 
gency Court of Appeals. Probably the most famous, or infamous, of 
these was the United States Commerce Court. President William 
Howard Taft, in a special message to Congress on January 7, 1910, 
urged the creation of such a court to review decisions by the Interstate 
Commerce Commission. President Taft suggested that "[r]easons pre- 
cisely analogous to those which induced the Congress to create the court 
of customs appeals [sky supported the establishment of the Commerce 
Court.^° More specifically, the President noted: 

The questions presented . . . are too often technical in their character 
and require a knowledge of the business and the mastery of a great 
volume of conflicting evidence which is tedious to examine and 
troublesome to comprehend. . . . What is, however, of supreme im- 

19 See S. 2541, 84th Cong., 1st Sess. (1955); S. 1273, 86th Cong., 1st Sess. (1959); S. 1275, 
86th Cong., 1st Sess. (1959). 

20 45 Cong. Rec. 379 (1910). 


portance is that the decision of such questions shall be as speedy as the 
nature of the circumstances will admit, and that a uniformity of deci- 
sion be secured so as to bring about an effective, systematic, and scien- 
tific enforcement of the commerce law, rather than conflicting decisions 
and uncertainty of final result.^i 

The President's recommendation was incorporated in bills dealing with 
the Administration's program of railway regulation introduced by Sen- 
ator Elkins^^ and Representative Townsend of Michigan.^^ When the 
Mann-Elkins Act became law on June 18, 1910, the Commerce Court 
was oflicially established.^* 

The Commerce Court quickly became embroiled in numerous diffi- 
culties. Its opponents charged that the court favored carriers and frus- 
trated the work of the Interstate Commerce Commission.^* Decisions of 
the Supreme Court reversing the Commerce Court lent a degree of 
credence to these charges, although not all of the reversals were in favor 
of the shippers.^* In some of these cases the Supreme Court's reversal 
turned on questions of statutory interpretation; in others upon the Com- 
merce Court's substitution of its own judgment for that of the Com- 
mission's regarding factual questions. Some authors have assumed that 
these reversals by the Supreme Court eroded both public and congres- 
sional confidence in the court.^^ This loss of confidence, plus the wide- 
spread belief in charges of favoritism, contributed to the court's demise. 
Senator Lewis' speech before the Senate on October 3, 1913, reflected 
the congressional sentiment: ^^ 

21 /i. 

22 S. 6737, 61st Cong., 2d Sess. (1910). 

23 H.R. 17536, 61st Cong., 2d Sess. (1910). 

24 Act of June 18, 1910, ch. 309, 36 Stat. 539. 

25 F. Frankfurter & J. Landis, The Business of the Supreme Court 166-68 (1928) 
[hereinafter cited as Frankfurter & Landis]; Frankfurter, The Business of the Supreme 
Court of the United States-A Study in the Federal Judicial System, 39 Habv. L. Rev. 
587, 607-09 (1926) [hereinafter cited as Frankfurter]. 

"^^ Compare Proctor & Gamble Co. v. United States, 225 U.S. 282 (1912), rev'g 188 F. 
221 (Commerce Ct. 1911), with Intermountain Rate Cases, 234 U.S. 476 (1914), rev'g 
Atchison, T.,&S.F. Ry. v. United States, 191 F. 856 (Commerce Ct. 1911); and Los 
Angeles Switching Case, 234 U.S. 294 (1914), rev'g Atchison, T.,&S.F. Ry. v. ICC, 
188 F. 229 (Commerce Ct. 1911); and ICC v. Southern Pac. Ry., 234 U.S. 315 (1914), 
rev'g 188 F. 241 (Commerce Ct. 1911); cmd ICC v. Louisville & N.R.R., 227 U.S. 88 
(1913), rev'g 195 F. 541 (Commerce Ct. 1912); and ICC v. Goodrich Transit Co., 224 
U.S. 194 (1912), rev'g 190 F. 943 (Commerce Ct. 1911). 

27 Minor, The Administrative Court: Variations on a Theme, 19 Ohio St. L.J. 380, 
390 (1958). 

28 50 Cong. Rec. 5413 (1913). 


[WJhenever the citizens of a free country lose their confidence in any 
established court, to maintain that court as an institution is a useless 
proceeding, because, once that confidence is gone, all respect for its 
adjudications is ended and the court loses its usefulness either to itself 
as a court or as an agency of welfare to the community which it 
assumes to serve. Since this seems to be the view concerning the Com- 
merce Court located at Washington, I affirm the opinion of the people, 
as expressed bv them in different branches and through different ave- 
nues, that the court should go. 

Congress moved to abolish the Commerce Court (but not the judges) 
in 1912. President Taft refused to allow his special project to die with- 
out a last ditch fight, and he vetoed the bill on August 15, 1912.^ The 
court was thus given a temporary reprieve pending the outcome of the 
presidential election of 1912. Taft's defeat sealed the court's fate. The 
court was legislated out of existence on October 22, 1913.^° One of the 
original five judges had lost his position through impeachment; the four 
remaining ones were retained as circuit judges. The coun ultimately 
closed its doors on December 31, 1913. 

Ninety-four cases were docketed in the Commerce Court during its 
three-year existence. Forty-three decisions were rendered, including one 
rehearing. Twenty-two cases were appealed to the Supreme Court. Of 
these, 13 were reversed, two modified, and seven affirmed.®^ While 
certain critics have characterized this record as a disaster, the record 
of the lower federal courts in comparable cases suggests that the critics 
have overstated the case against the Commerce Court. From 1887 until 
1910, 58 orders of the Interstate Commerce Commission came before 
the circuit courts for review. Twenty-five of the 58 cases ended in the 
lower courts. Of these the Commission's order was sustained in six, and 
reversed in 19 cases. In the 33 cases that were appealed to the Supreme 
Court, the lower court decided 12 of them in favor of the Commission 
and 2 1 against it. The Supreme Court decided nine in favor of the Com- 
mission and 24 against it. In the lower courts the decisions against the 
Interstate Commerce Commission prior to 1910 were 39 out of 58, or 
67 percent. Of those decided by the Supreme Coun, 24 out of 33, or 
73 percent, went against the Commission. Thus out of 58 decisions taken 

29 48 Cong. Rec. 11025-27 (1912) (veto message of President Taft). 

80 Act of October 22, 1913, ch. 32, 38 Stat. 208, 219. 

31 Frankfurter & Landis, supra note 25, at 165; Frankfuner, mpra note 25, at 606. 


to the federal courts, 43, or 74 percent, were decided against the Com- 

At the time that congressional reaction to the Commerce Court 
reached a high point (July-August, 1912) the court had rendered 24 
decisions. Of these, two were concerned only with the jurisdiction of 
the Court. In the other 22 the Commission's order was sustained in 12, 
reversed in nine, and partially reversed and sustained in the remaining 
one. In three of the nine reversals the Commission had decided in favor 
of the railroads, and it was the shipper who had enlisted the aid of the 
court. Two more of the nine reversals were cases in which the Com- 
merce Court merely continued decrees previously issued by the circuit 
courts. Thus out of 22 final decisions there were only four in which 
the Commerce Court reversed an order of the Commission in favor of a 
shipper.^^ Attorney General Wickersham, speaking before the House 
Committee on Interstate Commerce, stated that for the period from 1906 
to May, 1912, the Commission had been reversed in 56 percent of the 
cases before the circuit courts, 45 percent of the cases before the Su- 
preme Court, and only 41 percent before the Commerce Court.^* 
These figures hardly support the charge that the Commerce Court was 
biased in favor of the railroads and was undermining the role of the In- 
terstate Commerce Commission.^^ 

There is also evidence that the Commerce Court reduced the total 
time taken for the adjudication of cases. During the first year and a 
half of the court's existence the average case took less than a year from 
the filing to the final decision in the Supreme Court, as compared to a 
previous average of two years and one month.^^ 

Furthermore, in evaluating its success one should remember that the 
Commerce Court was the progeny of a turbulent era and a contro- 
versial policy. In those days the railroads were widely regarded as 
monopolists themselves, or as the tools of other monopolists. Neverthe- 
less, the entire process of curtailing the abusive power of railroads over 
individual shippers was slow, cumbersome, and rarely successful. The 
Interstate Commerce Commission was reversed in all but two of the 
first 23 cases in which it sought the aid of the courts to enforce its 

32 48 Cong. Rec. 10946 (1912) (letter from Henry S. Drinker). 
S3 Id. 

34 48 Cong. Rec. 6152 (1912). 

35 Because each case is given equal weight, these figures do not, of course, reflect the 
importance of reversals in critical, as opposed to noncritical cases. 

36 48 Cong. Rec. 10946 (1912) (letter from Henry S. Drinker, Jr.). 


orders."*^ Taking all these factors into consideration— the economic and 
political climate, the short life-span of the court, the heavy load it 
undertook ("Probably no court has ever been called upon to adjudicate 
so large a volume of litigation of as far-reaching import in so brief a 
time."),^® and the highly controversial nature of the substantive issues to 
be decided— the experience of the Commerce Court hardly provides a 
conclusive test of the desirability of specialized courts. It does, however, 
provide warning signals. 

The Court of Customs and Patent Appeals 

The Court of Customs and Patent Appeals also resembles the pro- 
posed Administrative Court in its appellate, specialized administrative 
jurisdiction. The court originated as the Court of Customs Appeals in 
29Q9 39 Congress established the court to relieve the circuit courts of 
the burden of customs appeals. According to Frankfurter, the Second 
Circuit, which absorbed 85 percent of the customs litigation in the early 
1900's, was swamped with appeals from the Board of General Appraisers. 
At first the situation was particularly intolerable, because the cases were 
being tried de novo in court rather than on the record before the Board. 
In 1908 legislation provided relief from this handicap. ^° Still, the courts 
"suffered through a volume of business whose nature was outside of 
their usual province of experience, and which they did not effectively 
discharge." ^^ Nev^ertheless, there were some senators, including par- 
ticularly Senators Borah, Cummins, and Dolliver, who were not con- 
vinced. They feared the "vices of specialization— narrowness and 
partiality." ^- Despite their opposition Senator Aldrich secured the 
adoption of the proposal for a special court as an amendment to the 
Payne- Aldrich Tariff Act of 1909.''^ 

A special patent court, vigorously advocated by the patent bar, was 
much longer and harder in coming. Bills for this purpose first began to 

37 Id. From the passage of the Hepburn Act of 1906 to the establishment of the 
Commerce Court only 57 suits had been instituted in the circuit courts, of which only 
24 had been determined. The remaining 33 were transferred to the Commerce Court. 
W. at 6144-45 (1912). 

38 Frankfxrter & Landis, supra note 25, at 164; Frankfurter, supra note 25, at 605. 

39 Act of August 5, 1909, ch. 6, § 29, 36 Stat. 11. 

40 Act of May 27, 1908, ch. 205, § 2, 35 Stat. 404, 405. 

41 Frankfurter & LA>fDis, supra note 25, at 151; Frankfurter, supra note 25, at 592. 

42 44 Cong. Rec. 4185-4200 (1909); Frankfurter & Landis, supra note 25, at 151; 
Frankfurter, supra note 25, at 592. 

43 Act of August 5, 1909, ch. 6, § 29, 36 Stat. 11. 


appear in 1878/* The first reform, in 1891, succeeded only in easing the 
burdens of the Supreme Court by relieving it of its obligatory jurisdic- 
tion in patent matters. But this in turn created new difficulties for the 
patent bar. Unresolved conflicts developed among the circuits. "Thus, 
to the earHer justifications for the proposal of a patent court, namely a 
desire for specialized judges and speed of disposition, was added the 
need for uniformity in decision and enforcement." '^^ Even so, the move- 
ment for a special patent court seemed doomed to failure. The experi- 
ence of the Commerce Court had discouraged further experimentation 
with specialized courts. Furthermore, the increasing liberality of the 
Supreme Court in granting certiorari to resolve conflicts and the in- 
creasing skill in the circuit courts in handling patent litigation seemed 
to dull the need for a separate court. Nonetheless, the movement for a 
separate patent court finally triumphed, in part, with the creation of 
the Court of Customs and Patent Appeals in 1929.^^ 

The change effected by the 1929 statute was considerably more 
modest than the original proposal for a specialized court. The statute 
simply transferred to the Court of Customs Appeals the jurisdiction of 
the Court of Appeals of the District of Columbia with respect to appeals 
from the Commissioner of Patents in patent and trademark cases. The 
principal reason for this change was that the Court of Appeals was 
greatly overburdened with cases while the Court of Customs Appeals 
did not have enough work to keep its five judges fully occupied."*^ 
Consequently, the judges of both courts welcomed the change, although 
there was little reason to believe that one court would be more expert 
than the other. During the years the Court of Customs and Patent 
Appeals has exercised its expanded jurisdiction, it has, of course, de- 
veloped an expertise in patents and trademarks as well as customs. This 
is, however, an expertise shared with the other federal courts that handle 
patent and trademark infringement suits.'*® 

The Emergency Court of Appeals 

A third specialized court somewhat comparable to the proposed Ad- 
ministrative Court, the Emergency Court of Appeals, was established bv 

44 Frankfurter & Landis, supra note 25, at 148; Frankfurter, mpra note 25, at 589. 

45 Frankfurter & Landis, supra note 25, at 178; Frankfurter, supra note 25, at 619. 

46 Act of March 2, 1929, ch. 488, 45 Stat. 1475. 

47 69 Cong. Rec. 5015 (1928); 70 Cong. Rec. 4388 (1929); Fenning, Court of Customs 
and Patent Office Appeals, 17 A.B.A.J. 323 (1931). 

48Rifkind, A Special Court for Patent Litigation? The Danger of a Specialized 
Judiciary, 37 A.B.A.J. 425 (1951). 


the Emergency Price Control Act of 1942. This court was given au- 
thority to exercise exclusive jurisdiction, subject to review in the Su- 
preme Court with respect to the validity of price and rent regulations 
and orders.'*^ The court was unique in that its judges were regular fed- 
eral circuit or district judges designated by the Chief Justice of 
the United States to sit on the Emergency Court. Like the proposed 
Administrative Court, the Emergency Court was authorized to sit in 
panels anywhere in the United States. During the 20 years of its exis- 
tence the court traveled extensively, sitting at places convenient to 
counsel for the complainants. The scope of its review was clearly de- 
lineated; the court's primary function was to determine whether adminis- 
trative decisions were arbitrary and capricious or otherwise not in accord- 
ance with law. The cases were reviewed on the record made before the 
Administrator, with provision for the taking of additional evidence, 
either before the Administrator or the court, when appropriate grounds 
existed. In these respects the review was very similar to review of ICC 
orders by three-judge district courts. The court was granted similar 
power to review administrative decisions under the Housing and Rent 
Act of 1948,^ the Housing and Rent Act of 1949," and the Defense 
Production Act of 1950.^^ Its total docket consisted of 676 cases of 
which approximately 400 were heard orally.^' During the period of its 
heaviest dockets, the war years 1943-1945, the judges of the court di- 
vorced themselves from practically all other business. 

The principal reasons for the creation of the Emergency Court of 
Appeals involved considerations of both uniformity and expedition. In 
order to be fair and effective it was important that price and rent con- 
trol regulations could be enforced uniformly throughout the country. 
Expeditious review was necessary because the Emergency Price Control 
Act explicitly provided that price and rent regulations should not be en- 
joined or suspended while litigation was pending. Consequently, only 
the successful conclusion of judicial proceedings brought relief to the 
litigant. Speed was especially important in litigation calculated to change 
an applicable price. Where there were other objectives, such as an in- 
crease in subsidy payments or immunity from pending enforcement 
proceedings, time was not so much at a premium. On the whole, the 

49 Act of January 30, 1942, ch. 26, § 204, 56 Stat. 23. 
60 Act of March 30, 1948, ch. 161, 62 Stat. 93, 97. 
51 Act of March 30, 1949, ch. 42, 63 Stat. 18, 23. 

62 Act of September 8, 1950, ch. 932, § 408, 64 Stat. 798, 809. 

63 See Proceedings of the Final Session of the Emergency Court of Appeals, Dec. 6, 
1961, 299 F2d. 1, 12-13. 


Emergency Court admirably satisfied the need for expedition. The 
average time elapsed between final submission and disposition of cases 
was two months.®* 

An examination of the most involved and important pieces of litigation 
before the Emergency Court suggests that, even where there were de- 
manding pressures for speedy adjudication, there were no easy short- 
cuts in resolving complicated problems. Meat price control, for ex- 
ample, presented both the Price Administrator and the Emergency 
Court with some of their thorniest problems. Complaints challenging 
the validity of the basic meat price regulations were filed in November 
1943. The progress of the cases was temporarily suspended in the Emer- 
gency Court by the issuance of orders in January, 1943, granting appli- 
cations by the complainants for leave to file additional evidence and 
directing such evidence to be presented to the Administrator. The cases 
were then argued before the court in September and October, 1944, 
and were first decided by the court in March 1945.^® One of the cases 
was reopened, however, on April 2, 1945, and was not finally disposed 
of until July 31, 1945.** Petitions for certiorari were denied by the 
Supreme Court on June 4, 1945*^ and on October 8, 1945.°^ Thus the 
total time elapsed from the filing of the complaints to the final disposi- 
tion was 2 3 months. Similarly, in the most complicated of the rent con- 
trol proceedings, involving the New York City defense rental area, the 
complaint was filed in the Emergency Court on September 29, 1944, 
the first argument was held on February 8, 1945, and the first decision 
was handed down on June 25, 1945.*® However, the case was not finally 
disposed of until an opinion on rehearing was filed by the Emergency 
Court on August 23, 1946, and a petition for certiorari was denied by 
the Supreme Court on January 6, 1947.**' Here the total elapsed time was 
27 months. Cases such as these might well be examined by those fond 
of suggesting that there must be a more expeditious means of resolving 
the complex problems of economic regulation. 

64 Remarks of Maris, C. J., at Proceedings of the Final Session of the Emergency 
Court of Appeals, Dec. 6, 1961, 299 F.2d 1, 17. 

55 Armour & Co. v. Bowles, 148 F.2d 529 (Emer. Ct. App.), cert, denied, 325 U.S 
871 (1945); Heinz v. Bowles, 149 F.2d 277 (Emer. Ct. App. 1945). 

Be Heinz v. Bowles, 150 F.2d 546 (Emer. Ct. App. 1945). 

67Armour & Co. v. Bowles, 325 U.S. 871 (1945). 

58 E. Kahn's Sons v. Bowles, 326 U.S. 719 (1945). 

59 315 West 97th St. Realty Co. v. Bowles, 156 F.2d 982 (Emer. Ct. App. 1945), cert, 
denied, 329 U.S. 801 (1947). ' 

60 W. 


Nevertheless, the record of the Emergency Court of Appeals was an 
impressive one.^^ Although the court sustained the Administrator in a 
large majority of cases, complainants were partially successful in the 
cases already mentioned, and wholly so in others.^^ The court also ex'er- 
cised a healthy influence over the Administrator by requiring him to 
expedite his own decisions on occasion. In addition, the court settled 
many important questions of statutory interpretation, although not all 
of these decisions were sustained by the Supreme Court.^^ 

General Observations 

The lessons to be drawn from the historical experience of speciahzed 
courts in the federal judicial system are not conclusive. The Emergency 
Court of Appeals was a specialized court only in a very qualified sense; it 
consisted of regular federal judges with broad experience in the general 
jurisdiction of federal courts, who devoted themselves entirely to a par- 
ticular subject matter for a relatively brief period. The Commerce 
Court experience suggests that a specialized court may easily lose public 
confidence if it must face highly controversial issues of great public im- 
portance. The Court of Customs and Patent Appeals, on the other 
hand, operates in the relatively protected waters of extremely technical 
litigation where no one case or even group of cases is likely to become 
of great public moment. 

Significantly, neither the Emergency Court of Appeals nor the Court 
of Customs and Patent Appeals dealt with a particular industry or group 
of industries. Their jurisdiction, unlike that of the Commerce Court, 
was generalized in its impact on society, though confined to a special- 
ized legal subject matter. Consequently, suspicion of bias in favor 
of or against particular groups in society was less likely to be gen- 
erated with respect to particular judges or with respect to the courts 
as a whole. The opposite is likely to be true of any body, judicial 
or quasi-judicial, that deals with particular industries. The charge 
that regulatory commissions over the years tend to be dominated bv the 
industries that they regulate, whether justified or not, is too common 
to be ignored entirely in establishing new institutions. The concern 
that a commission which regulates competing industries, such as the 

61 See Nathanson, The Emergency Cmcrt of Appeals, in Problems in Price Control: 
Legal Phases (GPO 1947); Hyman & Nathanson, Jitdicial Review of Price Conirol: 
The Battle of the Meat Regulations, 42 III. L. Rev. 584 (1947). 

62 See, e.g., Davies Warehouse Co. v. Bowles, 321 U.S. 144 (1944). 

63 See, e.g., Parker v. Fleming, 329 U.S. 531 (1947); Utah Junk Co. v. Porter, 328 
U.S. 39 (1946); Davies Warehouse Co. v. Bowles, 321 U.S. 144 (1944). 


different modes of transportation, should not unduly reflect the atti- 
tudes or interests of any one of the competitors must always be a con- 
trolling consideration in the staffing of such agencies. Obviously, it 
would be unfortunate if circumstances warranted a similar concern in 
the case of purely judicial bodies, such as reviewing courts. Yet it is 
difficult to imagine how concern about partiality could be avoided if, as 
the Council suggests, a special court were set up to exercise jurisdiction 
with respect to the transportation industry, the power industry, or the 
securities markets, or all three of them. The dangers which Professor 
Frankfurter epitomized as those of "narrowness and partiality" may, of 
course, be diminished by the comparative breadth of the jurisdiction, but 
they will not entirely be avoided by including a few more industries. 

Striking an appropriate balance between the substitution of judicial 
judgment for administrative judgment, on the one hand, and the rubber 
stamping of administrative determinations, on the other hand, has not 
been easy for the federal courts."^ Nevertheless, there has been an 
accumulation of experience which may not be so easily transferred 
to an entirely new institution, particularly one which is to justify its 
existence by exercising expertise in the subject matter of regulation. 
Similarly, with respect to the problems of administrative procedure the 
federal courts have developed an expertise unbounded by the subject- 
matter realms of particular agencies, even though the procedures of par- 
ticular agencies may vary significantly. For example, the decisions on 
standing which have upset the conventional procedures of many agen- 
cies have been evolved by the federal courts in the exercise of their 
general review power.^^ The same was true of the earlier decisions on 
ex parte communications which generated sweeping reforms in ad- 
ministrative procedures.®*' A widespread contact with a great variety 
of administrative agencies is probably more conducive to this healthy 
judicial influence on administrative practice than limited contact with 
a few agencies which may tend to operate in much the same way. 

An alternative system responsive to these considerations would con- 
centrate judicial review of all the federal regulatory agencies in a sepi- 

64 The history of the substantial evidence rule is an example of this difficulty. See 
NLRB V. Walton Mfg. Co., 369 U.S. 404, 405 (1962); Universal Camera Corp. v. NLRB, 
340 U.S. 474, 496-97 (1951). 

6^ See Office of Communication of the United Church of Christ v. FCC, 359 F.2d 
994 (D.C. Cir. 1966); Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 615-17 
(2d Cat. 1965), cert, denied, 384 U.S. 941 (1966). 

66 See, e.g., Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C. 
Cir. 1959). 


rate division of the federal courts of appeals whose judges would be 
entirely relieved of both the federal criminal jurisdiction and jurisdic- 
tion over private litigation. Whether such a fundamental change in the 
federal judiciary is desirable is doubtless fairly debatable, but that would 
not be relevant to the particular questions presented by the Coun- 
cil's recommendations. The point is that a mere dilution of the regu- 
lar federal courts' administrative review jurisdiction has drawbacks 
which might not be associated with a wholesale withdrawal of such 
jurisdiction. As presently constituted, the regular federal courts have a 
prestige and attractiveness to professional talent which cannot be equaled 
by any other judicial assignments. It is apparent that as far as attrac- 
tiveness is concerned the Administrative Court envisaged by the Coun- 
cil would not rival the existing federal courts, particularly the courts 
of appeals. This would be true not only because of the more limited 
tenure of the judges, but also because of their more hmited juris- 
diction. Neither can it be assumed that the establishment of a court of 
such limited jurisdiction would provide a fair trial run for a general 
administrative review court of broader jurisdiction. The very nature of 
the limitation would so drastically affect the character of the court that 
it could not be regarded as a fair test of a general administrative review 
court. The latter type of court, besides making a substantial dent in 
the total caseload of the courts of appeals, would also be in a much 
better position to make such contributions as a court might usefully make 
to the development of both uniformity and innovation in substantive 
and procedural administrative law. The judges of such a court would 
presumably be Article III judges who could occasionally substitute for 
other Article III judges, when the distribution of the caseload war- 
ranted. It is also conceivable that a new administrative review section 
of the federal courts might be partially staffed from sitting federal 
judges, so that its birth pangs would be less terrifying. Appointment to 
such a court— clearly delineated as an Article III court— might, for ex- 
ample, be attractive to sitting district judges. This clearly would not be 
true with respect to the court suggested by the Council. Finally, 
the periodic transfer of judges between the two systems might achieve 
some of the benefits of both specialized and generalized jurisdictions— 
namely, a growing familiarity with a particular subject-matter accom- 
panied by the broader perspective of a wider experience. Of course this 
suggestion might be carried further to include several subject-matter 
divisions within the courts of appeals." 

^ See Carrington, Crowded Dockets and the Courts of Appeals: The Threat to the 


The Council's proposal must also be viewed in relation to the 
present and proposed jurisdiction of the Supreme Court itself. The 
phenomenal growth in the Supreme Court's own total caseload in re- 
cent years has been reflected primarily in the increasing proportion of 
denials of certiorari.*® Those denials reflect in part the confidence the 
Supreme Court must repose in the courts of appeals as courts of almost 
last resort. Whether this system itself is now growing out of hand, as 
some believe, and must eventually require further major surgery, is a 
larger question related only indirectly to the Council's proposal.^^ The 
immediate point is that the establishment of a new and less prestigious 
tribunal of more limited jurisdiction, from which direct review lies to 
the Supreme Court, is not likely to contribute to a healthy relationship 
between the Supreme Court and the lower federal courts. This is il- 
lustrated further by Chief Justice Stone's support, as early as 1942, 
of proposed legislation which would have transferred the three-judge 
district court review of Interstate Commerce Commission orders to 
the courts of appeals.''" Although this would have involved another 
element— the transfer of such cases from the obligatory to discretion- 
ary jurisdiction of the Supreme Court— it also demonstrates the con- 
fidence which the Supreme Court would prefer to place in the courts 
of appeals. An appropriate concern for the preservation and improve- 
ment of this special relationship between the courts of appeals and 
the Supreme Court, especially in matters of federal law, must there- 
fore raise additional doubts with respect to the wisdom of any proposal 
for the establishment of a non-Article III court of limited jurisdiction, 
directly below the Supreme Court in the hierarchy of the federal 

Function of Review and the National Law, 82 Harv. L. Rev. 542, 589-96 (1969). 

68 The statistics show 2586 denials and dismissals in October Term 1968, as compared 
with 1388 in October Term 1959. Annual Report (1969), supra note 6, Table A-1. 

69 See Hart, Foreword: The Time Chart of Justices, 73 Harv. L. Rev. 84 (1959); 
Wiener, Federal Regional Courts: A Solution for the Certiorari Dilemma, 49 A.B.A.J. 
1169 (1963). 

70 Hearings on H. R. 1468, H. R. 1410, and H. R. 2211 Before Subcomms. 3 & 4 of 
the House Corrtm. on the Judiciary, 80th Cong., and Hearings on H. R. 2915 and 2916 
Before Subcomm. 2 of the House Conmi. on the Judiciary, 81st Cong., 1st Sess., scr. 2, 
at 55 (1949). 

493-361 O - 73 - 15 



Glen O. Robinson* 

REORGANIZING the Federal Executive is one of those compul- 
sive concerns which can be expected to engender a major study, 
complete with proposals for reform, at some time in the period of every 
modern presidential administration. For the Roosevelt era there was 
the Brownlow Committee study of 1937.^ In the Truman and Eisen- 
hower years there were the two Hoover Commission studies.^ Under 
Presidents Kennedy and Johnson several studies of a more modest 
scope were conducted.^ The Nixon Administration has continued the 
tradition with new studies of governm.ent organization by the Advisory 
Council on Executive Organization, headed by businessman Roy L. 
Ash. Two reports deal with executive departments, and a third deals 
with the independent regulatory commissions.* This is a commentary 
on the latter. 

• Professor of law, University of Minnesota. 

This article is based upon reports prepared for the Administrative Conference of 
the United States. The Conference has not evaluated or approved either this article 
or the reports from which it is drawn and bears no responsibility' for the views 
expressed herein. I would like to acknowledge the benefit of helpful discussion with 
Roger Cramton and other members of the Conference's Committee on Agency Organiza- 
tion, but of course they too bear no responsibility for my views. 


WITH Studies of Administration in Federal Government (1957) [hereinafter cited as 
Brownlow Report]. 

2 Comm'n on Organization of the Executive Branch of The Government, Report 
(1949) [hereinafter cited as First Hoover (3omm'n Report]; and Comm'n on Organiza- 
tion OF the Executive Branch of the Government, Report (1955) [hereinafter cited as 
Second Hoover Comm'n Report]. 

3 Under President Kennedy there were no "global" studies of government organiza- 
tion comparable to the Hoover Commission studies; there were important, but more 
limited studies, such as the widely cited report on regulatory commissions by J. Landis, 
Report on Regulatory Agencies to the President-Elect (1960). During the Johnson 
AdministraTJpn there were unpublished "task force reports" on Executive organization. 
See The President's Advisory Council on Executtve Reorganization, A New Regu- 
latory Framework: Report on Selected Independent Regulatory Agencies 27 n.7 
(1971) [hereinafter cited as Ash Council Report]. And, of course, there were some 
major reorganizations made during President Johnson's administration, the most notable 
of which was the creation of the Department of Housing and Urban Development, 79 
Stat. 667 (1965), 42 U.S.C. h ISll (Supp. V 1965-1969); and the Department of Trans- 
portation, 80 Stat. 931 (1966), 49 U.S.C. § 1652 (Supp. V 1965-1969). 

* President's Advisory Council on Executive Organization, Memoranda for the 


The Ash Council is not an admirer of the independent commissions^ 
and though its Report does not recommend abolition of all of them 
(nor indeed does it deal with all of them), it is throughout hostile to 
the independent commission as an institutional form. The hostility has 
a long lineage. In 1937— still in the youthful era of the commissions if 
one discounts that aged dinosaur the ICC— the Brownlow Committee 
launched a broadside attack on the independent commissions as a 
"headless 'fourth branch' of Government, a haphazard deposit of irre- 
sponsible agencies and uncoordinated powers." ^ In the years that fol- 
lowed the commissions became more familiar, but for some, increased 
familiarity has only bred more contempt. In 1955 in a classic of this 
critical genre, political scientist Marver Bernstein concluded: 

[T]he commissions have not been satisfactory instruments of govern- 
mental regulation of business. They have been founded on a basically 
undemocratic concept of the political process and have helped to per- 
petuate naive notions about regulation of business, the virtues of group 
decision, and the uses of expermess. By insulating themselves from 
popular political forces, the commissions have subjected themselves 
to undue influence from the regulated groups and tend to become 
protective spokesmen for the industries which they regulate. By vir- 
tue of their emphasis upon formal procedures of adjudication, com- 
missions gradually forsake the vigorous search for the public interest 
for the role of administrative tribunal.* 

Four years later, on the occasion of his resignation from the CAB in 
1959, Louis Hector reached a similar judgment. The independent com- 
mission, he informed the President in a now famous memorandum, "is 
not competent in these days to regulate a vital national industry in the 

President of the United States, Establishment of a Department of Natural Resources; 
Organization for Social and Economic Programs, 7 Presidential Doc. 174 (Feb. 8, 1971); 
and the Ash Council Report, supra note 3. As its title indicates the Report does not 
deal with all of the independent agencies. The AEC, NLRB, Tariff Commission and 
Federal Reserve Board are omitted for reasons not given. 

6 Brovstnlow Report, supra note 1, at 40. 

*]V1. Bernstein, Regulating Business by Independent Commission 294-95 (1955). 
Two earlier major studies of the same genre are R. Cushman, The Independent Regu- 
latory Commissions (1941), which contains the substance of his earlier report to the 
Brownlow Committee, and E. Redford, Administration of National Economic Control 
(1952). Redford's book presents a far more favorable view of the independent com- 
missions than does either Cushman or Bernstein. Other critical studies are cited through- 
out the Redford book. 


public interest." " In 1963 former FCC Chairman Newton Minow con- 
curred, at least so far as the FCC was concerned,® and a year ago he 
was joined by former FTC Commissioner Philip Elman.® 

On the other hand, the independent commissions have had their 
defenders and few if any of the criticisms have gone unchallenged by 
scholars such as Landis, Jaffe, Davis, and Friendly— to name but a few.^" 
Since nothing has been done to restructure the commissions, one might 
be inclined to surmise that the defenders have had the best of the debate, 
but this would be simplistic. Given Congress' predisposition to resist 
any reorganization that would undermine its political control over the 
commissions, and given the prevailing disposition among the regulated 
industries themselves to resist any reform (particularly one so fraught 
with uncertainty as the elimination of the independent commission), 
the absence of change reveals very little about the merits of reform. 
Indeed, such has been the array of political forces favoring the present 
status of the commissions that the pragmatist may ask whether any 
reorganization is possible however strong a case could be made for it. 
Whether reform is possible is a difficult question to answer in the ab- 
stract, since the respective commissions and regulated industries present 
distinct problems both administratively and politically. Assuming, how- 
ever, that reform is politicallv feasible the question remains, how strong 
is the case for it? 

In light of our several decades experience with the independent 
regulatorv commissions, none but their most ardent admirers would 
have the temerity to argue that their existence is an inevitable feature 
of government regulation. Although, given the political and social con- 
ditions that have existed in this country, it is not difficult to understand 
whv this institutional form was chosen, one can hardly say of the inde- 

7 Hector, Problems of the CAB and the Independent Regulatory Commissions, 69 
Yale L.J. 931 (1960). 

8 Minow, Suggestions for Improvement of the Administrative Process, 15 Ad. L. Rev. 
146 (1963). See also Marks, Revision of Structure and Functions of the Federal Com- 
munications Commission, 18 Fed. Com. B. J. 4 (1963). 

9Elman, Tioe Regulatory Process: A Personal View, BNA, Antitrust and Trade 
Reg. Rep. No. 475, D1-D5 (1970). 

lOS^e J. Landis, The Administrative Process (1938); Jaffe, Invective and Inves- 
tigation in Administrative Law, SI Harv. L. Rev. 1201 (1939); Jaffe, The Effective 
Limits of the Administrative Process: A Reevaluation, 67 Harv. L. Rev. 1105 (1954); 
Jaffe, Book Review, 65 Yale L.J. 1068 (1956) (Professor Jaffe's incisive critiques are 
foundational to any modern study of independent agency organization and reform, 
and I have borrowed from them more often than my references would indicate). 
See also 1 K. Davis, Administrative Law Treatise, §§1.03-1.09 (1958); Friendly, A 
Look at the Federal Administrative Agencies, 60 Colum. L. Rev. 429 (1960). 


pendent commission as Voltaire said of the deity, if it did not now exist 
it would be necessary to create it. The regulatory functions could be 
performed by appropriate ex'ecutive agencies. Yet if in retrospect it 
appears that things could have been done differently, that seems hardly 
relevant; the question here is whether the reforms proposed offer sub- 
stantial promise of improvement. 

Political Accountability 

A pervasive criticism of commissions by the Ash Council is that they 
are not sufficiently accountable, either to the President or to Congress, 
and are therefore neither responsive to the public interest, nor coordi- 
nated with national policy. To correct these problems, the Ash Council 
proposes that appointments to the reorganized, independent agencies 
be made subject to the pleasure of the President. Together with modi- 
fication of the organization of the agencies, the Council expects this 
change in the status of appointees to bring about more effective control 
by the President. It is even promised that the change will facilitate 
more effective control by Congress.^^ 

The thrust of the Council's criticism closely parallels that of many 
earlier studies.^^ In one respect, however, it is even broader. Whereas 
most of the earlier criticisms found the primary fault to be the absence 
of executive control over the regulatory agencies, the Ash Council says 
that they are not sufficiently responsive to either executive or con- 
gressional will. Both aspects of the Council's charge are hard to assess 
absent a clear standard by which to measure political responsibility— 
a standard which the Ash Report does not supply; however, in the 
generality with which it is made here, one can at least say that the 
charge is nowhere substantiated by examples or by convincing logic. 

Consider first the charge that the commissions are not accountable 
to the President. Though nominally "independent," the commissions 
are not entirely free from presidential direction, as the Ash Council 
concedes. For example, all of the independent commissions are subject 
to some degree of direction through the Office of Management and 
Budget which passes on all agency budgets.^^ Though this power of 

11 Ash CouNaL Report, supra note 3, at 14-16 and passim. 

12 See notes 1, 6 and 7 supra. 

13 On Budget Bureau control, see Maclntyre, The Status of Regulatory Independence, 
29 Fed. B.J. 1 (1969); Staff of the Special Subcomm. of House Comm. on Interstate 
AND Foreign Commerce, 86th Cong., 2d Sess., Budget Bureau Censorship and Control 
OF Independent Agency Fiscal and Other Matters (Subcomm. Print 1960). One other 
lesser control device is the Justice Department's control over agency appeals. See 
Maclntyre, supra. 


the purse has not been used as a vehicle for detailed control of regula- 
tory policy, it could be an important executive constraint on general 
agency undertakings. Of far greater significance than budgetary con- 
trol is the control of appointments to the commissions by the Presi- 
dent. Through the appointments power a President is able to designate 
the chairmen of the commissions immediately upon taking office, and 
during the course of his administration he is able to designate a majority 
of the members of most agencies. Indeed, he has often been able to 
supply himself with these majorities within the first two years of his 

I do not wish to exaggerate the degree of control which the appoint- 

!■* Prior to 1950 the chairmen of all of the regulatory agencies but the FCC were 
appointed by the agency from among their members. Presidential control over the 
appointment of the chairmen of the FTC, FPC, and SEC was achieved by Reorganiza- 
tion Plans No. 8, 9 & 10 of 1950, 5 U.S.C. App. at 532-33 (1970). Congress at that 
time disapproved a similar proposal for the ICC, but a similar change has now been 
accomplished by Reorganization Plan No. 1 of 1969, 5 U.S.C. App. at 604 (1970). 

On the appointment of members themselves experience under the last three major 
changes in Administration (changes in party holding office) is noteworthy. Thus 
President Eisenhower, taking office after two decades of Democratic control, was 
able ivithjn two years, to appoint a majorit)' of members to the CAB, FPC, FTC, 
NLRB and SEC, and to appoint five of eleven ICC members and three of seven FCC 
commissioners. Taking over from an eight year Republican administration, President 
Kennedy was able to appoint, also within two years, a majority of members to each 
independent agency but the FCC, to which he named three members, and the ICC, to 
which he named four. Welborn, Presidents, Regulatory Commissioners and Regulatory 
Policy, 15 J. Pub. L. 3, 5-6 (1966). By the end of 1970 President Nixon had appointed 
or had power to appoint two of five members of the FTC, FPC, FMC, CAB and 
NLRB, three of seven members of the FCC, four of five members of the SEC and five 
of eleven of the ICC. By the end of 1971 he will have appointed or have had power 
to appoint a majority of all but the FCC and FTC. See the respective annual reports 
of these agencies. Of course, if any members resign before their full term has expired, 
President Nixon's appointment power will increase accordingly. 

Beyond the formal appointments power there is some, undefined power of influence 
which resides in the position of Chief Executive, a power which is perhaps used only 
on occasion; nonetheless it is sometimes effective. See, e.g., Wall St. J., Julv 21, 1970, 
at 1, describing some recent examples. 

Even those who have urged expanding the President's formal power over the inde- 
pendent commissions have conceded that his present powers are not insubstantial. After 
reviewing the various modes of presidential control and examples of presidential in- 
fluence. Professor Redford acknowledges that "ff]acts run counter to the theory that 
the commissions are 'wholly free from control by the President' ", E. Redford, supra 
note 6, at 283 (though he nevertheless continues to lay great emphasis on the need for 
greater presidential direction, id. at 361-64). Professor Bernstein concludes that presi- 
dential control and influence may be as extensive over commissions as over some 
executive departments and that the independence of the regulatory commission is 
"myth" (but he attaches considerable importance to this "myth"). M. Bernstein, supra 
note 6, at 145-63. 


ments power enables the President to exercise over the commissions. 
Though the power certainly permits the President to give some gen- 
eral direction to the commissions, it is perhaps too occasional and too 
indirect to achieve close control of operating policy. The Ash Coun- 
cil, however, plainly exaggerates the extent to which closer presiden- 
tial control would be achieved by its proposal to have appointees serve 
at the pleasure of the President and subject to his direct authority in 
the same manner and to the same extent as present executive officers. ^^ 
No doubt this proposal would, to some undefined degree, increase 
White House control, but it is doubtful that this greater control would 
be as great as the Ash Council supposes, or that the control achieved 
would measurably increase the degree of accountability and political 
responsibility desired. 

Generalizations about the degree of presidential control and the politi- 
cal accountability of agencies within the ex'ecutive branch are hazardous. 
The wide diversity among executive agencies, not only in terms of their 
organizational structure, but also in terms of the nature and impor- 
tance of their functions and the political environments in which they 
are performed, must inevitably produce great variation in the pattern 
of control. Nevertheless common observation and experience do com- 
mend one generalization about the purview of presidential control— 
the span of direct presidential control seldom extends beyond the very 
highest level officials and the most general policy considerations.^* 
And even this level of presidential control has been eroded by the 
growth of a federal establishment which looks less to personal presi- 
dential direction and more to institutionalized "White House" influ- 
ence with large powers of discretion being lodged in (sometimes anony- 
mous) aides." This phenomenon is particularly evident in cases in- 
volving operational policies of the kind which typically occupy the 
attention of regulatory commissions. 

15 The Council is ambiguous, if not inconsistent, on this in the case of its proposed 
new transportation administrator, see infra note 111, and accompanying text. 

16 See, e.g., E. Corwin, The PREsroENT: Office Amy Powers 98 (4th ed. 1957) 
(responding particularly to the Brownlow Committee's criticism of the commissions 
as "irresponsible and uncoordinated"); H. Finer, The Presidency, Crisis and Regen- 
eration, 46-47, 157-60 (1960); D. Truman, The Governmental Process 404-10 (1951). 
On the difficulties of political control of career officials generally, see Neustadt, Poli- 
ticians and Bureaucrats, The Congress and America's Future 102, 114 (Truman ed. 

17 For an excellent account of White House aides under the Roosevelt, Truman, 
Eisenhower, Kennedy and Johnson administrations see P. Anderson, The Presidents' 
Men (1968). See also H. Finer, supra note 16, at 202-15. 


The latter point needs emphasis, for the appropriate paradigm of 
political responsibility for the commissions is not the official or agency 
engaged in the high affairs of national policy; it is the subordinate 
bureau or office of some larger departmental structure. Among the 
appropriate executive models are the FDA, the FAA, the Federal High- 
way Administration, the Bureau of Land Management and the Packers 
and Stockyards Administration. Are these agencies more closely con- 
trolled by the President— or even the "White House"— than are the 
independent commissions?^^ At most the difference between the two 
types of agencies is one of degree; and, even accepting the general 
premise of the Ash Council that executive control is the immediately 
relevant norm of political responsibility, the degree of added control 
to be gained by its proposal seems insufficient in itself to compel re- 

Looking to the relevant executive models one must also doubt the 
Ash Council's contention that executive control will necessarily effectu- 
ate greater coordination among the commissions and other agencies 
and thereby bring about greater conformity to national policy.^^ Con- 
cededly the problem of coordination of policy is a large one in many 
areas of regulation, but it is not a problem unique to the independent 
commissions. It is no less a problem among executive agencies and 
departments, despite the many mechanisms of interagency coordination 
and, most notably, despite presumed presidential control. Consider, for 
example, the disparate ways of the respective military services;^* or 
the Corps of Engineers whose planning of dam and canal projects 

18 It is not simply a matter of the degree of removal from direct White House 
authority. More important is the fact that the President can expect only limited, if 
any, political gain from close involvement with these regulatory affairs. Cf. W. Gary, 
Politics and the Regulatory Agenoes 7-8 (1967). Merely transferring the agency 
to the executive branch is unlikely to alter this significantly, particularly where the 
agency has powerful political support independent of the President. The classic illustra- 
tion is the civilian component of the Corps of Engineers, which, though it is nominally 
within the Department of Defense, has the effrontery to regard itself as responsible 
directly to Congress. See A. Maass, Muddy Waters, The Army Engineers and the 
Nation's Rivers 74 (1951). See also Drew, Dam Outrage: The Story of the Army 
Engineers, Atlantic Monthly, April, 1970. 

19 Ash Council Report, supra note 3, at IS, 37-38. See also M. Bernstein, supra note 
6, at 147, 164-69, 221-23; Hector, supra note 7, at 949-53. The criticism of inadequate 
coordination is also shared by many who are nevertheless friendly to the commission 
as an institution. See, e.g., Landis Report, stipra note 3, at 24-30 (1960). The question 
of policy coordination is treated in greater detail below. 

2^ See, e.g., Huntington, Interservice Competition and the Political Roles of the 
Armed Services, 55 A.m. Pol. Sci. Rev. 40 (1961). Huntington, it should be noted, sees 
this rivalry as beneficial overall. 


comports little with the Department of Interior's conservation and 
reclamation pohcies;^^ or the rivalry between the Departments of 
Agriculture and Interior, pursuing their separate, independent policies 
in the area of public land management and conservation.^^ Such lack 
of coordination is a part of the accepted folkways of Washington 

Of course, the fact that disunity and disharmony exist among exec- 
utive agencies neither erases the fact that it also exists among the inde- 
pendent commissions, nor obviates the possibility that in a particular 
situation, executive control or executive organization might be an ap- 
propriate means of coordinating policy. More will be said on this later. 
For now it is enough to say that one cannot fairly attack the inde- 
pendent commission, as such, on these grounds. 

I have noted the apparent premise of the Ash Council that direct 
accountability to the White House is the norm of political responsi- 
bility for administrative agencies. If this were an exegesis on models of 
government, I would be inclined to challenge the relevance of this 
norm in a political culture as variegated as ours. But let that pass. The 
Ash Council in any event concedes that the President is not alone 
responsible for the agencies; Congress too has a responsibility and must 
have a measure of control. The Council, however, sees no conflict 
between continued congressional responsibility and increased executive 
control. Indeed, it urges that, in the context of its proposals for struc- 
tural reform, increased control by the executive will lead to more 
effective congressional control. Its conclusion is based on a finding that 
"Congress does not exercise the degree of oversight with respect to the 
regulatory commissions that it does for executive departments and 
other agencies of the executive branch." ^^ 

The Council cites no examples or authority to support this asser- 
tion, and it is not at all self-evident. The expressed general attitude 
of Congress itself— that the commissions are "arms of Congress"— sug- 
gests quite a different attitude than the Ash Council presumes to exist. 
Of course, this congressional attitude does not mean the commissions 
are always in close harmony with congressional will; but there is little 

2i5ee A. Maass, supra note 18, at 61-133, 254-59 (1951); D. Truman, mpra note 16, 
at 410-15; First Hoover Comm'n Report, supra note 2, Report on Dept. of Interior 

^For a brief discussion of the conflict, see First Hoover Comm'n Report, supra 
note 2, Report on Dept. of Agriculture 35-37; The Case for a Department of Natural 
Resources, 1 Natural Resources J. 197 (1961). 

23 Ash (Douncil Report, supra note 3, at 14. 


evidence that executive agencies are any more so. And the commissions 
may not always be responsive to Congress as an institution; indeed, 
they are often more influenced by congressional committees— particu- 
larly those with oversight responsibility— than by broader congres- 
sional will,^* All too frequently effective influence is wielded by a 
powerful committee chairman or a handful of committee members 
whose views do not reflect those of even the full committee; control 
is exercised by "a fraction which may be a faction." ^^ But again this 
phenomenon is not unique to the commissions; it is typical of the 
manner in which congressional influence and power is wielded through- 
out the system. The way in which the Senate Commerce Committee, 
or its members, attempts to influence the activities of the FCC is hardly 
distinguishable from the way in which the House Committee on 
Agriculture, or the chairman of the House Appropriations Subcom- 
mittee for Agriculture, attempts to influence the activities of the De- 
partment of Agriculture.^^ 

24 See H. Friendly, The Federal Administrate^ Agencies 169 (1962). A classic, 
and in my opinion most unfortunate, example of informal congressional ("political") 
control is the House Interstate and Foreign Commerce Committee's holding action 
against authorization of subscription ("pay") television by the FCC. It began in 1957 
when the FCC first asserted its authority to authorize pay television and approved 
experimental operations; the Covmiittee passed a resolution "requesting" a delay until the 
Committee had further opportunity to study the problem. See Second Report on 
Subscription Television, 16 P.&F. Radio Reg. 1539-40 (1958) (the Senate Commerce Com- 
mittee passed a similar resolution). From that time to 1968 the Committee, without re- 
porting a single piece of legislation to the whole House, was able (through threats, letters, 
committee resolutions and hearings) to forestall action by the FCC. In 1968 the FCC, 
asserting its independence, finally authorized pay television permanently. Fourth Report 
on Subscription Television, 15 F.C.C.2d 466 (1968), aff'd sub ncnn. National Ass'n. of 
Theatre Owners v. FCC, 420 F.2d 194 (1969), cert, denied, 397 U.S. 922 (1970). Even 
then the FCC delayed the effective date of the authorization for a year to give 
Congress time to respond. Pay television has finally been authorized (though with 
restrictions which make its viability doubtful). 

Oversight and control by committees and individual congressmen is examined with 
general approval in Newman and Keaton, Congress and the FaitJy^ul Execution of 
Laws— Should Legislators Supervise Administrators, 41 Calif. L. Rev. 565 (1953). 
a. Ginnane, The Control of Federal Administration by Congressional Resolutions and 
Committees, 66 Harv. L. Rev. 569 (1953), opposing grants of formal "legislative veto" 
power to be exercised by congressional resolution, committee, or committee chairmen. 
For examples of this type of control, see W. Rhode, Committee Clearance of Admin- 
istrati\-e Decisions (1959). 

25 .Macmahon, Congressional Oversight of Administration: The Power of the Purse, 
58 Pol. Sci. Q. 380, 414 (1943), quoted in H. Friendly, supra note 24, at 169-70. For an 
illustration of the "faction" part, see Scher, Congressional Connnittee Members as Inde- 
pendent Agency Overseers: A Case Study, 54 Am. Pol. Sa. Rev. 911, 918-20 (1960). 

26 On the influence of these committees (and their chairmen), see VV. Rhode, supra 


On similar reasoning one must question the Ash Council's further 
suggestion that placing the independent commissions in the executive 
branch would make them less susceptible to narrow interest group pres- 
sures and influences. The Council's contention is that the President's 
broad national constituency would protect the agency against narrow 
industry pressures and influences and enable it to take a broader view 
of the public interest.^^ As a priori theory the idea has appeal. Unfor- 
tunately, however, it does not have a very solid anchor in reality insofar 
as it assumes that executive departments operate majestically above the 
interests of particular industries or clientele concerns— an assumption 
which cannot survive the most cursory scan of executive agencies.^^ 
In fact the phenomenon of interest group representation is very much 
a part of the basic character of the political process in this country, 
and when one considers the underlying premises of many of our regu- 
latory schemes, one must acknowledge the truth of Professor Jaffe's 
statement that "industry orientation" is "much less a disease of certain 
administrations than a condition endemic in any agency or set of agen- 
cies which seek to perform such a task." ^® I do not call attention to 
this phenomenon to defend it (not in principle anyway); I simply see 
no magic in shifting the focus of interest group influence from com- 
missions to the executive. 

I acknowledge that (other things being, of course, equal) the broader 
the agency's constituency, the broader its vision and outlook are likely 
to be, whether the agency is independent or within the executive 
branch. This may be a major reason for consolidating certain agencies, 
a matter discussed later. But the character of the agency's constituency 

note 24, at 60; Wall St. J., June 7, 1971, at 1, 12. See generally Fenno, The Internal 
Distributicm of Influence: The House, in the Congress and America's Future 52-76 
(Truman ed. 1965); Huitt, The Internal Distribution of Influence: The Se?iate, in The 
Congress and America's Future 77-101 (Truman ed. 1965). 

27 Ash Council Report, supra note 3, at 41. See also Bernstein, supra note 6, at 
146-47, 155-62. 

2SSee, e.g., Jaffe, Book Review, 65 Yale L.J. 1068, 1071-72 (1956). Jaffe's special 
example of an executive agency well disposed towards industrial clientele is the De- 
partment of Agriculture. A few moments reflection brings quite a few other ex- 
amples to mind. For example, the Departments of Commerce and Labor are not known 
for their antipathy to business and labor interests respectively; the Federal Highway 
Administration (within the Department of Transportation) has certainly been most 
responsive to highway interests; and the FDA (within the Department of Health, 
Education and Welfare) has had a reputation in many quarters for unseemly solicitude 
toward industry interests. 

29 Jaffe, The Effective Limits of the Administrative Process: A Re evaluation, supra 
note 10, at 1113. 


will be no different whether the agency is independent or within the 
executive branch; therefore, a decision to mitigate the impact of in- 
terest group pressure on agency decisions is not dispositive of the 
question of independence. 

Agency Administration and the Commission 
Form of Organization 

The Council's charge that independent commissions are politically 
less accountable is a preface for more specific criticisms about agency 
administration within the commissions. The criticisms cover a wide 
variety of perceived ills. Broadly stated, they include the following: 

(a) "Overjudicialization" and excessive reliance on the "case-by-case 
decision making procedure" by the independent commissions re- 
sults in ineffective and inefficient policy making and poor man- 

(b) The commissions are not properly accountable for their actions 
and are therefore susceptible to improper influences (particularly 
through the selection of members responsible to one constituency). 

(c) The commissions as they are now structured cannot attract "able" 

Other faults ascribed to the commissions are largely reiterations or 
reformulations of these general themes. To correct these deficiencies, 
the Ash Council proposes that a single administrator be substituted for 
the present multi-member commissions in the fields of transportation, 
power and securities regulation and consumer protection. Because of 
the "special" character of communications, the Council excepts the 
FCC from its reforms though it proposes that the number of its mem- 
bers be reduced to five. The FTC's antitrust enforcement functions 
are also excepted; instead the responsibility for antitrust enforcement 
poHcy (which would continue to be shared with the Justice Depart- 
ment) would be vested in three members, with the chairman acting 
as "spokesman" for the agency and the others sharing responsibility 
in "policy deliberations." ^" 

Once again we are confronted with uncompromisingly general judg- 
ments, and attendant "solutions," unsupported by example, by con- 
crete analysis, or by obvious intuition. We are told that many things 
are wrong. That much seems obvious enough to require no special 

30 Ash Council Report, supra note 3, at 31-46. 


documentation. But when we are told that all the problems are closely- 
related to the plural form of commission organization, I think we are 
entitled to supporting evidence. It is not forthcoming. As far as I can 
judge the only claim the Council's "ipse dixits" have to behef is that 
they are repeated with fair regularity— apparently on the principle 
expressed by Lewis Carroll, that "what I tell you three times is true." ^^ 

There is also an apparent inconsistency, or at least ambivalence, in 
the Council's approach to these problems; for despite a laundry list of 
vices ascribed to the plural character of the commissions, it neverthe- 
less concludes that one, the FCC, should remain intact and that 
another, the FTC, should be only partly changed, with the single 
administrator taking responsibility only for enforcing consumer pro- 
tection laws leaving a multimembered "antitrust board" responsible for 
antitrust enforcement policy. For the FCC recommendation some ex- 
planation is given (to which I shall turn momentarily) ; but for the FTC 
no explanation is offered, despite the earlier assertion in the Ash Report 
that it is "difficult today to discern the distinction which justifies wide 
differences in the structure and processes of the Federal Trade Com- 
mission on the one hand and the Food and Drug Administration or 
Federal Aviation Administration ... on the other." ^^ This inconsist- 
ency is only one small part of a more pervasive looseness of thought 
and analysis which characterizes the Council's Report. 

Let me turn to some specifics. 


To begin with we are told, that for several reasons, multimembered 
commissions are inefficient and ineffective in policy making and "man- 
agement" tasks: [1] Multimembered agencies are said to rely exces- 
sively on formal, judicial procedures and case-by-case adjudication to 
formulate agency policy, instead of using rulemaking and informal pro- 
cedures which are more efficient. [2] The dispersion of authority and 
the difficulty of reaching necessary agreement among members are said 
to prevent efficient internal management in such areas as the use of 
staff and the establishment of work priorities. [3] The difficulties of 
collective decision making are said to prevent expeditious, effective 
policy making. 

31 L. Carroll, The Hunting of the Snark (1876). 

32 Ash Council Report, supra note 3, at 16. 


The first assertion— that the commissions are over judicialized^^— is 
a piece of received doctrine which I have critically examined in another 
article.^^ Without extensive reiteration I shall only assert here what I 
there attempted to illustrate, that both the vices of adjudication and the 
virtues of informal rulemaking processes are greatly exaggerated. If 
the process of adjudication can create delay, burden and complexity, 
to the point that it prevents effective agency action, these vices are 
not unique to any special procedure. The administrative failures for 
which adjudication is so often blamed are found abundantly where 
other processes have been employed.^^ It is of large importance that 
the formal procedures spurned by so many modern critics impose a 
degree of healthy constraint on the use of "expertise"— under cover of 
which so many sins are perpetrated.^ We must not be too quick to 
condemn a particular process or procedure because of "inefficiency" 
in limiting agency action until we are confident we will be satisfied 
with what the agency is going to do— until we know whose procedural 
ox is being gored. Formal adjudicatory procedures are sometimes said 
to be a vehicle by which the regulated interests limit agency action.^^ 
No doubt they sometimes are, but adjudicatory procedures also serve as 
a hedge against the predisposition of many agencies to promote too 
eagerly dominant industry interests.^* Where an agency, by character 
of its appointments or by force of the milieu in which it exists, is pre- 
disposed to favor industry interests, it may well have every reason to 

^^ The Ash Council's contention is repeated throughout its Report. In particular see 
id. at 34-39. 

34 My examination of similar charges is set forth in Robinson, The Making of Ad- 
ministrative Policy: Another Look at Ruleinaking and Adjudication and Administrative 
Procedure Reform, 118 U. Pa. L. Rev. 485 (1970). 

^^ See, e.g., id. at 528-35. 

•"'6 As is apparent from these remarks I share some of Harold Laski's reservations 
about the dangers of giving too free reign to the expert's judgment in matters of public 
policy. Expertise, wrote Laski, "breeds an inability to accept new views from the 
very depth of its preoccupation with its own conclusions. ... It sees its results out 
of perspective by making them the center of relevance to which all other results must 
be related. . . . [The expert] is incapable of rapid adaptation to novel situations. He 
unduly discounts experience which does not tally with his own." Laski, The Limitations 
of the Expert, 162 Harpers, 101, 102-04 (1930). See also R. Dahl & C. Lindblom, 
Politics, Economics and Welfare 74-75 (1953). 

37 See Bernstein, supra note 6, at 180. See also the observations of Judge Leventhal 
in American Airlines, Inc. v. CAB, 359 F.2d 624, 629-31 (D.C. Cir.), cert, denied, 385 
U.S. 843 (1966). 

38 For an excellent recent illustration see Moss v. CAB, 430 F.2d 891 (D.C. Cir. 1970). 
See also Marine Space Enclosures, Inc. v. FMC, 420 F.2d 577 (D.C. Cir. 1969) ; Office 
of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966). 


avoid formal procedures which provide an opportunity to other pubUc 
interests to challenge the agency-industry position, and which may 
also precipitate added public scrutiny or more exacting judicial review.^® 

All these arguments, however, are tangential to the main issue of 
reorganization, for whatever one thinks the appropriate procedures for 
policy making to be, nothing inherent in the commission form of 
organization precludes or impedes the use of such procedures. The Ash 
Council's supposition to the contrary defies common sense. It also 
conflicts with the observed performance of agencies under different 
forms of organization. For example, the FDA (managed by a single 
administrator) has been severly criticized for its reliance on formal 
judicial procedures.^" The multi-membered FCC, on the other hand, 
was one of the earliest and is currently one of the most prolific users 
of rulemaking procedures so much admired by the Ash Council.*^ 

The Council's contention that plural commissions are inherently poor 
"managers" bears the same infirmity. The Council uses the term 
"management" loosely to cover two quite distinct functions: [1] in- 
ternal administration functions— personnel assignments, office proce- 
dures and the like— and [2] substantive policy responsibilities. As to the 
former there is admittedly little reason for requiring collegial de- 
cisions; but the commission form of organization does not preclude 
centralization of responsibility for internal administration. Routine 
internal administration can and should be delegated to the chairman, 
and by him to staff officers.^- Commissions have, indeed, shown re- 

39 For further elaboration, see Robinson, mpra note 34, at 519-23, 526-28. 

40 Especially notable are the FDA's food standard proceedings where the act requires 
the use of trial type hearings. See e.g., 1 K. Davis, Administrative Law Treatise § 6.06 
381-83 (1958). Though the hearing requirement is in this instance dictated by statute, 
the FDA has done little in the past to make its hearing procedures more efficient and 
expeditious, as for example by greater use of stipulations, "canned" testimony and the 
like— procedures which many of the independent commissions have used for years. 
Recently there have been signs that the FDA is attempting to move away from past 
formalisms, at least in the drug licensing area. See, e.g., Pfizer, Inc. v. Richardson, 
434 F.2d 536 (2d Cir. 1970); Upjohn Co. v. Finch, 422 F.2d 944 (6th Cir. 1970), both 
affirming the use of informal rulemaking to set threshhold standards of drug efficacy, 
I think it is particularly interesting, however, that in adopting this technique the 
FDA has explicitly followed the pattern laid down by the independent commissions, 
particularly that of the FCC. 

41 The watershed case upholding the use of informal rulemaking involved the FCC, 
United States v. Storer Broadcasting Co., 351 U.S. 192 (1956). The extensive use by 
the FCC of such rulemaking procedures in formulating substantive policy has been held 
up as a model for other agencies. See, e.g., E. Redford, National Reguuvtory Com- 
missions, Need For a New Look 17 (1959). 

42 See, e.g., Attorney General's Committee, Report on Administrative Procedure, 


luctance to delegate fully these responsibilities. The reasons have never 
been carefully explored, but some speculations may be offered. One 
reason may be simple inertia from a time when delegation was less 
necessary. Another may be that handling such routine responsibilities 
provides a relief from— or excuse for not considering— more difficult 
policy matters. In either case abolition of the commission form might 
correct part of the problem, but not a significant part. Moreover, I 
think that in many instances the reluctance to delegate routine "man- 
agement" functions arises from the perception that management (staff- 
ing for example) touches closely on regulatory policy. Here the two 
aspects of "management" come together. 

That there are some difficulties and disadvantages to collective de- 
cision making in either adjudication or policy making no one will deny. 
First, the time and effort required for coordination and consultation 
among members add some delay and cost to the process of decision 
making. Second, the necessity of reaching agreement must inevitably 
produce compromise which may result in a lack of clarity or inde- 
cisiveness. But neither of these possible evils is substantial enough to 
warrant the complete elimination of collective decision making. To 
assess the cost and delay caused by the collective decision making process, 
they must be placed in the larger context of a full adjudicatory or 
rulemaking or investigative proceeding. So viewed the extra burden 
of collective judgment seems slight in comparison to the time and cost 
inherent in the institutional process of collecting, assimilating and evalu- 
ating the data on which final judgment must be based. As was noted 
earlier, this latter burden is not unique to multi-member agencies. 

The problems of compromise and lack of clarity and decisiveness 
are more troublesome. The commissions have been often criticized for 
their vacillation, vagueness and irresolution.*^ These are grevious faults 
surely, but they are shared by government agencies of every character; 
the single-administrator organization offers no special immunity from 

Ch. 1(D) (1941); First Hoover Commission, supra note 2, Task Force Report on 
Regulatory Commissions 43-44. The "administrative" functions of internal manage- 
ment should be sharply distinguished from so-called "executive" functions which are 
properly the responsibility of executive branch agencies— such as promotional activi- 
ties, operation of government owned enterprises, etc. There seems to be a tendency to 
blur this distinction, not only in the Ash Council Report, but in much of the other 
critical literature as well, particularly where proposals to separate "administrative" 
functions from "rulemaking" and "adjudicative" functions are involved. See, e.g., 
Hector, supra note 7, at 961-62. 

43 See, e.g., H. Friendly, supra note 24, passim; Hector, supra note 7, at 939-44; 
Robinson, supra note 34, at 528-35. 


this pervasive malady.*^ The inclination to compromise, perhaps in 
some cases to "fudge" on important policy issues is not simply a product 
of shared authority among several agency members. Differences among 
agency members do not exist in a vacuum; they reflect basic conflicts 
among different groups and interests involved in a particular problem. 
Such conflicts cannot be resolved simply by administrative fiat and 
attempts to do so are likely only to shift political pressures to Congress 
(most often congressional committees) or the executive ("White House 
staff") where they may be equally effective, but less visible to the 


The Ash Council concludes, however, that because the independent 
commissioners are less accountable to the public than unitary adminis- 
trations, they are more susceptible to special interest pressures; the 
commissioners are deemed to lack public accountability which makes 
it easier for interest groups to obtain the appointment of friendly com- 
missioners and to influence collegial judgment.'*"' The assumption that 
commissioners are less accountable has already been discussed; it suf- 
fices to note that the conclusion earlier stated— that agencies headed by 
a single administrator have no special immunity from the influence of 
special interest groups— is applicable here. Indeed, the single adminis- 
strator may be more vulnerable because he provides a sharper focus for 
the concentration of special interest power and influence.^^ One plausi- 

44 Consider in particular criticism of the FDA in M. Mintz, The Therapeutic Night- 
mare (1965) and a recent Nader study, J. Turner, The Chemical Feast (1970). 

45 Ash Council Report, supra note 3, at 40-41. Compare Professor Bernstein's con- 
clusion that "[p]lurality removes the members from the harsh impact of public opinion." 
Bernstein, supra note 6, at 173. I have two questions about his statement: (1) From 
whose public opinion are they so insulated? And (2) why should the single admini- 
strator be more attuned to "the harsh impact of public opinion" than any or all mem- 
bers of a plural executive? The first question reveals my belief that it is naive in many 
of these regulated areas to talk about a "public" opinion. What, after all, is the public 
opinion about, say, the ICC's use of the minimum rate power? The second question 
implies my judgment that even where there is a discernible public opinion separate 
from or fairly representative of the diverse individual segments of the public, there is 
little evidence that single administrators are specially attuned to it. See notes 28 and 30 
supra and accompanying text. 

■*€Elman, supra note 9, at D4, thoughtfully notes this possibility though the author 
evidently does not consider it a large problem. But the risks cannot be ignored. The 
early administration of civil aeronautics regulation offers a rather dramatic illustration. 
Under the Kelly Act of 1925, 45 Stat. 594 (1925), and the McNary-Waters Act of 1930, 
46 Stat. 259 (1930), the Postmaster General was given complete authority and virtually 
unfettered discretion to award airline route certification subsidies (within, of course. 

493-361 O - 73 - 16 


ble advantage of the commission form it that it provides multiple 
channels by which varied interests can be made more visibly a part of 
the decision-making process. 

The Ash Council rejects such notions, remarking that there appears 
no way "of measuring the efficacy of bipartisan checks," and that in 
any event the checks are less important than public exposure and 
accountability to which the single administrator would be subject.'*' 
The dubiousness of the latter assumption has been noted; regarding the 
former, the Council seems to have missed the point. It is not biparti- 
sanship as such that is important; it is rather the safeguards and balanced 
viewpoint that can be provided by plural membership. One need not 
suppose that plural membership (bipartisan or not) is any guarantee of 
these things to believe that the assurance it offers in this respect is greater 
than the single administrator can promise. If the advantages of the 
plural commission over the single administrator here described are 
difficult to measure, as the Council suggests, they are at the least as 
measurable as the benefits ascribed to the latter. 

The Council's curt dismissal of the problem of concentrating power 
in a single administrator is hard to reconcile with its conclusions that 
multiple membership should be retained for the FCC. In the sensitive 
area of communications, it is said, a single administrator would be in 
an "exceptionally vulnerable position which, because of its appearances, 
could impair public trust," while a "collegial form increases the prob- 
ability that internal checks and balances will be effective" against other- 
wise improper influences or biases.** 

the Department's appropriation). In the hope of promoting the early development of a 
stable and self-sufficient industry the then Postmaster General, Walter F. Brown, used 
his broad powers to mold the industry into a near monopoly. Through collusive agree- 
ments with the airlines and a manipulation of route and air mail contracts awards. Brown 
promoted the concentration of industry control into three dominant holding companies. 
When investigation in 1934 revealed Brown's work. Congress set about to reform the 
structure of regulation, but Brown's efforts had a lasting (and adverse) impact on the 
early structure of the airline industr\'. See Antitrust Subcomm. of the House Comm. 


2d Sess. 8-17 (1957). I do not mean to imply by this example that the single-adminis- 
trator organization is necessarily flawed, nor do I suppose that the multiple membership 
of the commissions is necessarily an assurance against this kind of failure. The point is 
simply that unification and strengthening of authoritv can be a vice as well as a virtue, 
particularly when external controls are inadequate. The point seems especially forceful 
where the regulatory laws and policies are alreadv oriented toward protection of special 

47 Ash Council Report, mpra note 3, at 41. 

48 7i. at 117-18. 


Not being privy to the Council's deliberations, I can only speculate 
about the extent to which the proposed retention of FCC independence 
was calculated to avoid the political tornado that any proposed transfer 
of regulatory authority to the executive would create in what is already 
a chmate of high tensions between the Administration and the broadcast 
media. But the circumstances which may have made it politically 
prudent not to propose executive control dramatize a more highly 
principled basis for the regulatory independence of, and for "effective 
checks and balances" within, the agency that regulates the broadcast 
media. So whatever the Council's underlying reasons for its proposals 
to retain the independence of the FCC, the result can still be accepted. 
The remaining question is whether there is any principled basis for 
drawing a sharp distinction between the FCC and regulatory agencies 
which the Council proposes be reorganized under single administrators. 
If telecommunications regulation is a very sensitive area of public policy, 
does not the vital role which securities regulation plays in the integrity 
of the nation's financial structure make it especially "sensitive" too? 
Is not the regulation of the transportation system also an especially 
"sensitive" (as well as politically volatile) area of public policy? I do 
not argue that all regulation should be placed in the hands of inde- 
pendent multi-member commissions; I merely suggest that the "prin- 
ciple" upon which the Council bases its decision concerning the FCC 
has wider application. 

But the primary reason for maintaining collective deliberation and 
judgment on matters of broad public policy is not to provide safeguards 
against abuse and invidious influence; rather it is to ensure a broader, 
more varied perspective on complex and multifaceted issues.''^ The single 
administrator does not necessarily lack this perspective; he has access to 
the opinions of his staff, other agencies, Congress, and affected parties 
outside the government. However, the Commission form does enhance 
the possibility that different perspectives will be brought to bear directly 
on deliberations at the highest agency level. 


The supposed ability of single-administrator agencies to attract better 
personneP" requires only brief attention. If, as I assert, the political 

49 See First Hoover Comm'n Report, supra note 2, Task Force Report on Regulatory 
Comm'ns at 21 for a similar judgment. 

60 Ash Council Report, supra note 3, at 41-43. It seems that nearly every observer of 
the commissions has commented on the poor quality of commission appointments. A 


environment would remain unchanged by agency reorganization, there 
is no reason to think that appointments to the single-administrator 
agencies, would be any more able, other things being equal. I accept 
the Council's intuition that a position as a single-administrator is more 
attractive than a position in which power and responsibility must be 
shared. But the attractions of the job are only part of the problem 
of obtaining good appointees. The larger problem is to create a poli- 
tical environment in which the best men can and will be selected. The 
single-administrator form of organization is no solution to this problem. 
Former FTC Commissioner Philip Elman has recently argued, how- 
ever, that the status of an agency, as independent or executive, does 
make a difference in the quality of appointments. Elman speculates 
that Presidents are more careless about the quality of appointments to 
independent agencies, the vacancies on which they use to satisfy polit- 
ical debts; but Presidents are more "reluctant to appoint incompetent 
Commissioners to executive agencies, for their failure will be his failure; 
their incompetence will be his embarrassment; continuing them in 
office, despite poor performance, will be his responsibility." ^^ If Elman 
were correct, it would be a most compelling argument for executive 
control. But his assumption concerning the psychology of Presidential 
appointments must be skeptically received. He correctly suggests that 
it would be "instructive to compare the agency members appointed over, 
say, the last quarter of a century with the Assistant Secretaries (or 

few of the more notable ones include the First Hoover Comm'n Report, mpra note 2, 
at 431; Bernstein, supra note 6, at 104-09; J. Landis, supra note 19, at 11-13; Friendly, 
supra note 10, at 444-45; and most recently, Elman, supra note 9, at D2. For recent 
critical evaluations of the personnel and leadership within two particular commissions, 
see ABA Comm. to Study the Federal Trade Comm'n, Report 32-36 (1969) [herein- 
after cited as ABA Report]; R. Fellmeth, The Interstate Commerce Omission: The 
Public Interest and the ICC 1-22 (1970). 

Some of the concern has been directed less at the quality than the turnover of mem- 
bership among the commissions. See, e.g.. Hector, supra note 7, at 957-58. This concern 
does not seem to me the major problem. Indeed, given poor quality of appointments, 
a reasonably swift turnover may be a special blessing. In any event the "turnover" 
problem is not one that can be specially linked to the independent commissions. For 
one thing, it should be noted that, from 1933 to 1965, the average period of service of 
commissions was more than double that of top level (assistant secretary and above) 
personnel in executive agencies. D. Stanley, D. Mann & J. Doig, Men Who Govern, 
A Biographical Profile of Federal Political Executives 63-64, 68-70 (1967). For 
another, the reasons most frequently given by political executives for leaving their 
job after a short period have no discernible relationship to any special problems of the 
commissions, or any grievances against them. See M. Bernstein, The Job of the 
Federal Executive 161-62 (1958). 

51 Elman, supra note 9, at D5; c/. Ash Counol Report, supra note 3, at 41. 


Assistant Attorneys General) chosen during the same period." ^^ How- 
ever, if the scope of the comparison is expanded as it logically should be, 
to include other top level executive positions which have regulatory 
responsibilities equal to those of independent commissioners in equally 
sensitive political areas, would the results reveal what Elman supposes? ^^ 
Have appointments to the FMA been more distinguished than those to 
the FCC; or have appointees to the FAA been superior to those to the 
CAB; or have those to the FDA been superior to those to the FTC? I 
freely concede that appointments to the commissions have all too often 
not been good enough, but I cannot rhapsodize about those which have 
been made to executive posts. There may be a few cases in which the 
qualifications for appointments to the commissions appear to have been 
measured by a standard lower than that for executive appointments, 
but there are enough cases where the standard for both has been equally 
low to make one cautious about formulating a generalization about 
discriminatory standards. 

Elman's speculations provoke thought in an area which deserves fur- 
ther study and reflection; but preoccupation with the issue of execu- 
tive-control-versus-independence should not channel the broad inquiry 
into a narrow comparison of the relative qualities of appointments to 
executive agencies on the one hand and independent commissions on 
the other. Given the varied roles agencies play and the disparate poli- 
tical circumstances in which they function it is unlikely that an in- 
vestigation of the pattern of presidential appointments would reveal a 
simple, sharp dichotomy in the quality of executive and independent 
agency appointments. A more complete investigation might inquire 
into some of the apparent disparities in the equality of appointments 
among independent agencies and among executive agencies. It might 

52 EUman, supra note 9, at D2. 

53 See generally D. Mann & J. Doig, The Assistant Secretaries (1965). Mann does not 
attempt any comparison between appointments to executive posts and those to the 
independent agencies, but his findings are pertinent to Elman's speculations as to the 
difference in appointment standards, and they tend to undermine the central assump- 
tions underlying Elman's speculations. For one thing Mann indicates that the President 
is "relatively inactive in the search for second-level executives, particularly after the 
first round of appointments have been made", id. at 265, a finding which seems to 
run counter to one of Elman's basic suppositions. For another, Mann indicates that 
appointments to second-level executive posts vary in calibre, and that there are no 
uniform criteria or standards of qualifications. See id. at 264-66. And clientele interests 
play an important role here, just as in appointments to independent agencies. Id. Also 
noteworthy is Mann's conclusion that of the executive appointments studied many were 
filled with compromise candidates who were the recruiters' third or fourth choices. 
Id. at 265, 


also take into account not merely membership appointments but the 
top level staff as well. These inquiries could reveal much about the 
professional and political circumstances that figure in the "personnel 
problem". For example, the SEC has enjoyed over the years a reputa- 
tion among Washington observers for the generally high calibre of both 
its membership and its staff— one which excels the reputations of most 
other independent commissions and is at least equal to that of many 
executive agencies. Assuming its exceptional reputation is justified, what 
explains it? To the extent that disparities in the calibre of presidential 
appointments exist among independent commissions, or among executive 
agencies do exist (and I would be astonished to hear it denied that they 
do exist), we must look beyond Elman's surmises for an explanation. 

Review of Agency Decisions 

The Ash Council condemns the current system for reviewing hear- 
ing decisions, which provides for both intra-agency review, and judicial 
review of final agency action. 

Delegation of Adjudicatory Decision Making 

In criticizing internal agency review, the Ash Council applies its 
broad condemnation of the commissions' "preoccupation" with judicial 
procedure in the formulation of agency policy. In this instance the 
Council sees this preoccupation resulting in the unnecessary review of 
examiner decisions by the full commissions, which leads to unduly 
prolonged proceedings and ineffective use of agency resources, and 
diverts the commissions from making broad poHcy in situations where 
they are not constrained by adversary context. To avoid this unneces- 
sary review, the Council proposes that the administrators of the re- 
structured transportation, securities and power agencies and the new 
trade practices agency review only selected cases, to examine their 
conformity with agency policy.^^ 

As observed earher, the premise underlying this proposal to limit 
agency review— that "judicial" procedures are poor vehicles for formu- 
lation of agency policy— is questionable. But reform of the present 
internal agency review practices need not be based on the Council's 
dubious premise; there is considerable merit in the idea of promoting 
delegation of decision-making responsibility within the agencies. Yet 
the Ash Council's proposal for implementing delegation is at best a 

54 Ash Council Report, supra note 3, at 49-51. 


crude attempt to solve a problem it has taken little trouble to investi- 
gate. First, it is not apparent why delegation must be in the proposed 
form of limited discretionary review of examiner decisions, rather than 
intermediate review boards (the existence of which the Ash Council 
mentions only passingly). We have some experience with both forms 
of delegation. The CAB employs discretionary, certiorari-type review, 
suggested by the Council, and though it has authority to establish inter- 
mediate review boards, it has contented itself with discretionary re- 
view.^^ The FCC and the ICC on the other hand have used review 
boards quite extensively with equal satisfaction.^* Studies of these dif- 
ferent modes of delegation have not established the inherent superiority 
of either; rather, they have eschewed recommending any one pattern 
of delegation for all agencies, and have concluded that while agencies 
should be given authority to delegate (which many already have), 
they should not be required to delegate.^'^ That judgment seems correct. 
Given the great diversity among the procedural and substantive prob- 
lems, faced by the various agencies, and the wide disparity in work- 
loads among the agencies, the uniform, mandatory requirement con- 
templated by the Ash Council would be as unwise as it is unnecessary. 
Apart from the question whether to require the commissions to dele- 
gate is the question whether the Council's proposals regarding the extent 
of delegation and the nature of the discretionary review are sound. The 
Council proposes that the administrator would, on his own motion, 
review only selected decisions primarily to determine consistency with 

55 The CAB's use of discretionary review is assessed in Ellis, Discretionary Review 
Procedure at the Civil Aeronautics Board (unpublished study for the Administrative 
Conference). The FTC formerly employed a discretionary review procedure but 
abandoned it. See Auerbach, Scope of Authority of Federal Administrative Agencies 
to Delegate Decision Making to Hearing Examiners, 48 Minn. L. Rev. 823, 833-34 (1964). 
See also Auerbach, The Federal Trade Commission: Internal Organization and Proced- 
ure, 48 Minn. L. Rev. 383, 472-75 (1964) . 

56 The FCC's use of a review board is assessed in Freedman, Review Boards in the 
Administrative Process, 117 U. Pa. L. Rev. 546 (1969); and that of the ICC in Note, 
Intermediate Appellate Review Boards for Adrninistrative Agencies, 81 Harv. L. Rev. 
1325 (1968). The review boards are to be distinguished from employee boards which 
perform a wide variety of minor, "adjudicative" functions such as "Fourth Section" 
relief (relief from the long haul-short haul clause of Section 4 of the Interstate Com- 
merce Act, 49 U.S.C. § 4 (1964). For a list of ICC boards, see Hearings on Regulatory 
Agencies Under the Jurisdiction of the Comm. Before the blouse CoTmn. on Interstate 
and Foreign Commerce, 90th Cong., 1st Sess., ser. 90-1, at 28-38 (1967). 

^"^ See, e.g., Auerbach, Scope of Authority, supra note 55, at 866-69; Freedman, supra 
note 56, at 573-75; Note, supra note 56, 1333-34. In addition to the agencies mentioned, 
the FMC has authority to delegate but has not used it; the SEC has a more limited 
authority which it has not used extensively. Auerbach, supra note 55, at 833, 838-53. 


agency policy. More importantly, he would be required to take action 
within thirty days— that is, he would be required to select the cases 
for review, deliberate, reach a decision and, in case of remand, state his 
reasons all within a month (in case of remand, the Council would set a 
further time limit of 30-45 days). Such a peremptory review pro- 
cedure would be inadequate to give the administrator any but the most 
casual grasp of the issues in cases of importance unless he were very 
familiar with the case before he reviewed it, or unless he had free access 
to the agency staff participating in the case. Either circumstance raises 
questions of basic fairness.^^ The limitation on remand proceedings is 
equally deficient for similar reasons. 

The problem is the more acute because it is obviously intended that 
private parties involved in the adjudication would not be permitted to 
participate in the review process. Though the Council does not, in 
terms, preclude such participation, the time limit set and the manner 
in which the review process is described make it clear that the Council 
does not contemplate such participation. A peremptory review pro- 
cedure in adjudicatory cases which effectively excludes panies from 
participation may or may not raise due process issues depending on how 
it is implemented in practice;^® but it is in any event of doubtful wis- 
dom. Excluding formal participation by private parties in the review 
process would provide a fertile field for improper attempts to reach the 

58 Currently section 5 of the Administrative Procedure Act, 5 U.S.C. § 554(d) (Supp. 
V 1970), with certain exceptions, appears to prohibit communications with participating 
staff. Though section 5(c) states that it is not applicable to agency members, I interpret 
this as referring only to communications with non-participating staff. In any event, 
a number of agencies have adopted regulations prohibiting ex parte communications 
between staff panicipants in hearings and all decision-making personnel, see, e.g., ICC 
Rules of Practice, 49 C.F.R. § 1100, App. C (Supp. 1971), reflecting a widely held view 
that fairness forbids any ex parte communication between personnel actively involved 
in a "restricted" case and agency members. 

59 There is no constitutional right to oral argument before the agency, FCC v. VVJR, 
The Goodwill Station, Inc., 337 U5. 265 (1949), which might suggest no constitutional 
problems for an agency reviewing solely on the record. On the other hand it might 
be argued that the manner of review proposed by the Council virtually precludes the 
agency administrator from gaining any more than a cursory impression of the record, 
and that this violates due process. Morgan v. United States, 298 U.S. 468, 479-82 (1936) 
(Morgan I). The Morgan objection might be eliminated by the Ash Council's require- 
ment that the administrator give specific reasons for disagreement with an examiner's 
findings. Bur the administrator would still be bound by the hearing record; thus, either 
a reliance on extra-record information, not put before the parties for challenge, or a 
disregard of the record, in favor of the administrator's own assessment of the facts, 
would violate due process. See Ohio Bell Tel. Co. v. Public Util. Comm., 301 U.S. 292 
(1937) (extra record facts); Cinderella Career & Finishing Schools, Inc. v. FTC, 425 
F.2d 583 (D.C. Cir. 1970) (disregard of evidence). 


administrator informally and ex parte. Such illicit contacts would under- 
mine the adjudicatory hearing before the examiner and seriously impair 
the integrity of the regulatory process.^ 

At the very best the Ash proposal would be self-defeating. Limiting 
the agency to perfunctory review of examiner decisions would doubt- 
less increase the responsibility of the examiners, but to a far greater 
degree it is likely to cause a major shift in responsibility from the 
agency to the court. This would certainly undermine efficiency and 
expedition in decision making (the major purpose of the Council's pro- 
posals); it would also contradict a basic premise of the entire Report, 
that primary responsibility must rest with an agency which is respon- 
sible to Congress and the President. 

Judicial Revieiv 

The Ash Council proposes that a new "Administrative Court of the 
United States" be established to review decisions of the transportation, 
securities and power agencies (excluding the trade practices agency 
and apparently the FCC) . This specialized court, exercising the judicial 
review power now generally exercised by the federal courts of appeals 
(except in the case of the ICC decisions, now reviewed by three-judge 
district courts) is expected to provide a more expeditious and effective 
review in these respective areas, in addition to relieving the courts of 
appeals of the burden of this workload.^^ 

Proposals for an administrative court are familiar In the annals of 
administrative law reform. Most of them have called for a trial court 
to take over the "adjudicative" responsibilities of the commissions as 
part of a more general scheme for separating the regulatory functions 
of rulemaking, adjudication, administration and enforcement into dif- 
ferent agencies.^ The court proposed by the Council is different in 

■60 As an illustration of what could happen consider James Landis' description of the 
backdoor influences that have developed in connection vv'ith White House review of 
international airline route awards. Landis, Meddlivg jrom the White House, N.Y. 
Herald-Tribune, March 20, 1958, at 18, col. 3, reprinted in W. Gellhorn & C. Byse, 
Administrative Law 839 (5th ed. 1970). 

81 Ash Council Report, supra note 3, at 53-55. 

62 See, e.g., the proposals of Hector, Minow, Maries and Elman, supra notes 7, 8 and 9. 
I have critically examined these proposals at length in an unpublished report, Robinson, 
Reorganizing the Federal Regulatory Agencies: An Essay on Institutional Reform, 1970 
(unpublished report to the U.S. Administrative Conference). The literature on the sub- 
ject is enormous; most of it has been critical of this proposed reform. See, e.g., W. 
Gary, Politics and the Regulatory Agencies 133-34 (1967); 1 K. Davis, Administrative 
Law Treatise § 1.04-5, at 14-15 (Supp. 1970); H. Friendly, supra note 24, at 162; Auer- 
bach. Some Thoughts on the Hector Memorandum, 1960 Wis. L. Rev. 183, 186-87. 


that it is not based on any separation-of -functions scheme; the agencies 
would presumably continue to exercise the same combined functions 
exercised by the regulatory commissions, and the administrative court 
would merely supplant the Article III courts in reviewing agency action. 

The Council begins its case for this new court with the now familiar 
chant of administrative overjudicialization, to which it is suggested that 
the present system of review by "common law courts" contributes.^^ 
The exact nature of the relationship between review by Article III 
courts and overjudicialization at the agency level is not identified with 
sufficient particularity to allow evaluation, though it may in passing be 
noted that the suggested kinship is hard to reconcile with the great 
latitude which the courts have given to the agencies in the use of non- 
judicial procedures.^* There are, however, other benefits to be derived 
from the creation of an administrative court which the Council more 
specifically identifies: [1] Article III courts would be relieved of the 
burden of administrative review, and would thereby be freed for other 
pressing matters; [2] review of agency decisions would be expedited; 
and [3] greater uniformity in administrative procedure and substantive 
law would be achieved. In general terms I have no quarrel with these 
aims. My difficulty comes from the Council's assumption that they will 
be achieved in significant measure by the proposed reform. 

Consider first the Council's contention that reform will relieve con- 
gestion in courts of general jurisdiction. To support this contention, 
the Council cites some gross statistics on the current workload of the 
courts, it nowhere supplies information as to the share contributed by 
agency appeals. It simply assumes that the agency contribution is sub- 
stantial. The assumption is wrong. The number of appeals jrovt those 
agencies which would be subject to the p-oposed new Administrative 
Court is so small a portion of the total workload as to be almost beyond 
notice. ^^ Moreover, the basic premise, that administrative agency review 

63 Ash Council Report, supra note 3, at 52. 

^*See, e.g., United States v. Storer Broadcasting Co., 351 U.S. 192, 202-05 (1956); 
American Airlines, Inc. v. CAB, 359 F.2d 624, 629 (D.C. Cir.), cert, denied, 385 U.S. 
843 (1966). 

65 In fiscal 1969 a total of 10,248 appeals were commenced in the U. S. courts of 
appeals. Of that number, appeals from those agencies currently reviewed in the courts 
of appeal and which would be within the jurisdiction of the proposed new court (CAB, 
SEC, FPC and FMC) accounted for jewer than two hundred cases. See Annual Re- 
port OF THE Director of the Ad.ministrative Office of the United States Courts 
190 (1969) [hereinafter cited as United States Courts, Ann. Rep.], which gives a 
combined total of 166 cases for the CAB, FPC and SEC. The FMC is not separately 
identified, but the total of "all other boards and commissions" is forty-five. The 1968 


must be eliminated to make room for other business assumes what is 
neither obvious nor demonstrated— that the other business should have a 
prior claim to the time and attention of the federal courts. Does it make 
any sense to talk of relieving federal courts of the "burden" of hearing 
federal cases involving issues of federal regulatory policy— many of 
which are issues of major national import— while they must continue 
to hear cases involving private contract or tort actions whose only 
claim to federal jurisdiction is diversity of citizenship between the 
parties? ^^ 

As for the goal of establishing greater uniformity of policy and pro- 
cedure, all must agree that it is important to have consistency of poHcy, 
though the need for uniformity of procedure among disparate agencies 
is debatable.®^ But, to the extent greater consistency of policy is needed, 
as it unquestionably is in the transportation area, for example,*'^ the 
contribution of a single reviewing court to uniformity would be very 
modest. Given the inherent limits of judicial review, the primary re- 
form must come from the agencies. A far greater contribution to 
unifying policy could be made by consolidating related agency func- 
tions (as is proposed in the transportation area) and by unifying and 
rationalizing the statutory policies. If these things are done policy 
formulation may be effectively coordinated, but the establishment of 
an administrative court would add relatively little in this respect. A 
single reviewing court would, of course, eliminate the confusion and 
the conflicts which are sometimes generated by different opinions in 
different courts. Such conflicts, however, seem a minor part of the 

FMC Annual Report lists only 13 cases pending in fiscal 1968. In the case of the ICC, 
whose orders are currently reviewed in the district court, and which would also be 
brought within the new court's jurisdiction, the amount of "relief" is equally unimpres- 
sive. Of 77,193 civil cases commenced in fiscal 1969, all "commerce" cases involving the 
United States (including but not necessarily limited to ICC cases) numbered 190. Id. at 
204, 206 (I exclude "forfeiture and penalty suits" inasmuch as these would presumably 
continue to be brought in the district courts. In any event the total of such suits rele- 
vant here was only 89 in fiscal 1969. Id. at 207). 

66 The question whether diversity jurisdiction should be retained or abolished has 
been endlessly debated. For a recent discussion, see Currie, The Federal Courts and 
the American Law Institute, 36 U. Chi. L. Rev. 1, 4-8 (1968). In terms of the relative 
burden of diversity and administrative agency cases, it is noteworthy that, of 86,321 
civil cases pending in the district courts at the end of fiscal 1969, 30,384 were based 
on diversity. United States Courts, Ann. Rep., supra note 65, at 325-26. Of 10,248 
total appeals filed during fiscal 1969, 1215 were diversity cases. Id. at 190, 197. 

*7 I have elaborated this more fully elsewhere. See Robinson, supra note 34, at 536-39 
(1970). See also Jaffe, Basic Issues: An Analysis, 30 N.Y.U.L. Rev. 1273, 1275-76 (1955). 

^^See notes 84-129 and accom.panying text infra. 


general problem of creating coherent policy, particularly in those areas 
which, under the Council's proposal, would be brought within the 
administrative court's jurisdiction.^^ For example, in the area of trans- 
portation regulation, an area rife with policy conflicts, it is hard to 
think of a single area instance of policy conflict or disparity in which 
inconsistent court opinions played a major role in creating the problem. 

Another important consideration, regarding the proposed Administra- 
tive Court remains— what would its impact be on the character and 
scope of judicial scrutiny of agency policy and administration? Though 
the Council does not mention changing current standards of review, 
there is a faint hint that the new court might be less rigorous in 
"judicial procedure"; we are, however, left only to guess what this 
might mean. Neither does the Council comment on what it would 
expect of its new court in reviewing matters of substance. There 
are vague references to the court as "expert," which reinforces what, 
untutored by the Ash Report, we might expect such a tribunal would 
attempt to become. If our expectations are valid, the reform is a ques- 
tionable one. Assuming there exist experts who are fully acquainted 
with all the arcana of transportation, power, securities regulation, what 
assurance do we have that they will be appointed to such a court when 
for all appearances they have not been appointed to the agencies? 
More to the point, if we are looking for more experts, why not put 
them where their expertise has the most immediate impact: why not 
place them on the agencies themselves? It is sometimes supposed that 
a "court" would be more "attractive" than an agency and thus more 
lil^ely to attract "experts." But it is naive to expect to attract "experts" 
(whose expertise transcends special interest affiliations) simply by 
creating a more prestigious position. The same notion was encountered 
earlier in reviewing the virtues of the single administrator and, as far 
as I can see, it demonstrates here the same remarkable capacity of wish- 
ful thought for overcoming studied experience. 

In this instance, moreover, I would challenge not only the thought 

69 In view of the supposed need for greater uniformity among appellate decisions, it 
is surprising tliat the Council proposes not to include review of consumer protection 
or trade regulation decisions. It is my impression (no more than that) that appeals 
in these areas (and in labor decisions) create more frequent instances of circuit con- 
flict and even forum shopping than in any of the areas proposed to be within the new 
court's jurisdiction. Compare the proposals of the Second Hoover Commission for 
three courts for trade regulation, tax and labor. Second Hoover Comm'n Report, supra 
note 2, Legal Services and Procedure, 61-62, 84-88, and Task Force Report, 239-56, 
critically reviewed, Auerbach, Shcnild Admimstrative Agencies Perform Adjudicatory 
Functions?, 1959 Wis. L. Rev. 95; Jaffe, supra note 67, at 1283-89. 


but the wish that spawns it. The desire for an expert reviewing court 
rests on what to me are very unsound premises about the appropriate 
function of judicial review. I see this function as less a process of testing 
for the correct "expert" decision than one of holding "expertness" 
accountable to more general legal rules and public interest norms. A 
specialized, "expert" court is ill-conceived for this broader review, 
and, at worst, it might narrow the regulatory perspective even more- 
such was the brief but painful experience with a similar administrative 
review court, the Commerce Court.''''' No doubt the Commerce Court 
experience was an extraordinary one which is unlikely to be repeated, 
but it does counsel circumspection now. At best the proposed adminis- 
trative court would replace what are now by general agreement the 
best courts in this country; what assurance do we have that the new 
tribunal would be of equal quality? 

Organization of Power, Transportation and 
Trade Regulation 

In addition to its criticism of the general form of commission organi- 
zation, the Ash Council is also critical of the jurisdictional structure of 
regulation in the areas of power, transportation and trade regulation. 

Power Regulation 

In the area of power regulation, the Council recommends that re- 
sponsibilities under the Public Utilities Holding Company Act of 1935'^^ 
be transferred from the SEC to the reorganized FPC, the "Federal 
Power Agency", to whose functions they are more related.'^^ This 
proposal need not detain us since not much of great moment is in- 
volved. It may be, as the Council concludes, that the SEC's duties 
under the Holding Company Act (primarily the regulation of security 
issues, the acquisition of securities and utility assets and certain other 
corporate practices) are somewhat more closely related to the general 
responsibilities of the FPC than to those of the SEC. On the other 
hand these functions are certainly not wwrelated to the SEC's expertise 
and regulatory concern (at least no more so than they were to the 
primary purpose of the Act, to simplify and integrate the holding com- 

70 For a history of the Commerce Court see Frankfurter, The Business of the Supreme 
Court of the United States-A Study in the Federal Judicial System, 39 Harv. L. Rev. 
587,594-615 (1926). 

71 15 U.S.C. § 79 (1964). 

72 Ash Counql Report, supra note 3, at 104-05. 


panies— a function now largely achieved). It might be that such a 
transfer would facilitate integration of policy, but we are not sufficiently 
informed by the Council to make a judgment. The Council's case for 
the reorganization thus seems to be largely a matter of organizational 

Trade Regulation and Consumer Protection 

In the trade regulation area, the Ash Council is critical of the com- 
bination of consumer protection functions and antitrust functions in the 
FTC, chiefly because these different functions require difi^erent organi- 
zational forms and procedures. It recommends that the former respon- 
sibilities be transferred to a "Federal Trade Practices Agency" and the 
latter to a three-man "Federal Antitrust Board." '^ 

Considering the volume of recent critical literature on the FTC,^* 
a few brief comments on the Council's proposal will suffice. The pro- 
posal for separating the consumer protection and antitrust functions of 
the FTC is in contrast to the general tenor of the Council's Report 
which urges greater consolidation, coordination, integration. Here, the 
argument goes, we have a combination of two disparate functions which 
could more efficientlv be performed by distinct agencies. Though the 
argument is superficially plausible, some uncertainties do appear in the 
proposal, because of the vague terms in which it is presented. One 
would like to have a clearer idea of the lines that separate "consumer 
protection" from antitrust. The distinction appears clear enough in 
cases involving antitrust enforcement under the Sherman Act'^ or 
Clayton Act'*"' on the one hand and "deceptive practices" under Section 

73 Id. at 87-97. 

"4 E.g., ABA Report, sJ4pra note 50; E. Cox, R. Fellmeth, J. Schlxtz, 'The Nader 
Report' on the Federal Trade Commission (1969); Auerbach, The Federal Trade Com- 
mission, Internal Organization a7id Procedure, 48 Minn. L. Rev. 383 (1969); Posner, The 
Federal Trade Conmiission, 37 U. Chi. L. Rev. 47 (1969). Posner's article cites other 
critical material. Id. at 47, n.l. Posner's criticism of the FTC is more foundational than 
the other critiques; he would transfer the FTC's antitrust responsibility to the Justice 
Department, and would totally eliminate its responsibilities for policing fraud and unfair 
trade practices in lieu of reliance on private judicial remedies. 

With recent changes in personnel the FTC appears to be taking some of this criticism 
to heart. In particular, it has almost been overcome with missionary zeal in consumer 
protection enforcement. It has even earned praise from Ralph Nader. Wall St. J., 
Feb. 24, 1971 at 1. Whether this new fervor will inure to the continuing benefit of the 
consumer is yet to be demonstrated. 

75 26 Stat. 209 (IS90) , as amended, 15 VS.C. §§ 1-7 (1964). 

76 38 Stat. 730-40 (1914), as amended, 15 U.S.C. ^§12-27 (1964). 


5 of the Federal Trade Commission Act'^ on the other. But what would 
the Ash Council do with "unfair methods of competition or unfair 
acts ... or practices," the latter of which involves neither deception 
to the public on the one hand nor specific antitrust violations on the 
other? ^^ This problem, however, is probably not a significant one; in the 
mainstreams of antitrust litigation on the one hand and consumer pro- 
tection on the other, the overlap between the two seems too removed 
from the immediate concern of enforcement policy to justify their 
combination if we were to design enforcement schemes anew. The 
important question which must be raised is how much their present 
combination in the FTC really impairs the efficient performance of 
either function and how much is to be gained by their separation. Once 
again the Ash Council is long on theory but short on fact. 

One further point about the proposed reorganization of the FTC is 
especially noteworthy. Past proposals have called for unifying anti- 
trust enforcement in the Justice Department in order to facilitate uni- 
formity of enforcement policy.'^" Indeed, such a unification has been 
regarded as the paramount aim of reorganization. The Ash Council's 
reason for recommending retaining dual enforcement is difficult to 
understand in view of its recommendations for unifying transportation 
regulation and its insistent emphasis throughout the Report on the 
importance of agency coordination. The Report even concedes that 
unification would "probably result in increased consistency of policy, 

77 38 Stat. 719 (1914), as amended, 15 U.S.C. § 45 (1964). 

78 See FTC V. Brown Shoe Co., 384 U.S. 316, 321 (1966); Atlantic Ref. Co. v. FTC, 
381 U.S. 357, 367 (1965). Jurisdiction over cases such as Brcnvn Shoe and Atlantic 
would probably not be difficult to determine. Since in both cases the acts violated the 
"basic policies" of the antitrust laws, 384 U.S. at 321, they would logically fall within 
the jurisdiction of the trade regulation board. The question I raise here is what to do 
with those cases which involve neither the "spirit" of the antitrust laws, nor involve 
unfairness to consumers. A recent case, Sperry & Hutchison Co. v. FTC, 432 F.2d 146 
(5th Cir. 1970), cert, granted, 39 U.S.L.W. 3419 (March 30, 1971), seems to imply that 
there are no such cases; but if the court intended to suggest that section 5 does not 
reach practices which were proscribed by common law or criminal statute, independent 
of the letter or "spirit" of the antitrust laws, that suggestion seems in error. See, e.g., 
FTC V. Keppel & Bros., 291 U.S. 304 (1934) (use of lottery); Pcrma-.Maid Co. v. 
FTC, 121 F.2d 282 (6th Cir. 1941) (disparagement). Perhaps the reason for the Sperry 

6 Hutchinson court's ignoring this basis of FTC authority is that what the FTC was 
there challenging was obviously not of such a character. Indeed, the FTC charged 
Sperry & Hutchinson with a violation of section "i for enforcing (succcssfuHv) what 
had been declared by some 45 prior court decisions to be an unfair trade practice 
under state laws ("trafficking" in trading stamps)'. 

79 See, e.g., Posner, supra note 74, at 49-53; Simon, The Case Against the Federal 
Trade Commission, 19 U. Chi. L. Rev. 297, 337-38 (1952). 


elimination of overlapping efforts, and possible cost reductions;" its 
only reason for rejecting these advantages is that dual enforcement 
"permits a division of the workload and an assignment of cases based 
on the special expertise and perspectives of each." ^^ This same claim was 
made for the FTC when it was created over fifty years ago, but it has 
yet to be vindicated in practice.*^ However, if we set aside our skepti- 
cism and assume for the moment that a division of the work load and an 
assignment of cases based on special expertise is desirable and feasible, 
why are we compelled to place our experts in two antitrust agencies? 
What "special expertise and perspective" could continue to be exercised 
by the Justice Department that could not just as easily be reposed in 
the new Trade Board? Of course, years of experience with the lack- 
luster FTC are likely to be a practical bar to placing all antitrust en- 
forcement responsibility in one independent commission, no matter 
how "expert" it is supposed to be;^^ yet the failure of the Council even 
to advert to the possibility of putting all specialized expertise in such 
an agency prompts me to ask whether dual enforcement is proposed 
to be retained simply to hedge its bet on the proposed new board, or 
whether it is grounded on a deeper political premise that allows regu- 
latory consolidation when it would extend executive authority, but not 
when it would (at least modestly) curtail it? If the former, practical 
common sense may command its judgment, but the latter seems to me 
to represent an ideological one-way street.*"^ 

80 Ash Council Report, supra note 3, at 94. Commission expertise and its "relative" 
immunity from "political winds" were the reasons given by the First Hoover Commission 
for recommending the FTC be continued as an antitrust enforcement agency. Firsi 
Hoover Commission, supra note 2, Task Force Report on Regih^tory Commissions 
[App. N] 123-25 (1949). 

8i5ee Posner, supra note 74, at 49-53; Simon, supra note 79, at 329-34; Cf. Zimmerman, 
The Federal Trade Cmnmission and Mergers, 64 Colum. L. Rev. 500 (1964), which 
points out that such "expertness" as they have is "largely a consequence of concen- 
trated experience rather than of any special ability or technical preparation ... or of 
access to a large staff of economists and statisticians." Id. at 505. However, as Zim- 
merman's review of FTC merger cases demonstrates, even this "experience" has made 
little if any distinctive and solid contribution to the development of antitrust doctrine. 

82 The Justice Department's antitrust enforcement record is not beyond reproach 
either. For a criticism and quantitiative analysis of Justice Department activity, see 
Posner, A Statistical Study of Amitrust Enforcements, 13 J. Law & Econ. 365, 419 (1970). 

83 The predisposition to see reorganization as a one-way street is also evident in 
proposals to unify spectrum allocations functions in the telecommunications area. I 
have critically reviewed such proposals. See Robinson, Radio Spectrum Regulation: 
The Administrative Process and the Problems of Institutional Reform, 53 Minn. L. 
Rev. 1179 (1969). As I there noted the case for unification of spectrum responsibility 
is rather weak— far weaker than in other areas of regulation such as transportation. 


Transportation Regulation 

In the transportation field the Ash Council is severely critical of the 
current division of responsibilities among the ICC, the CAB and FMC 
which it alleges has frustrated rational coordination and resource allo- 
cation among the modes of transportation as segments of a total trans- 
portation system. The Council recommends that the ICC, CAB and 
FMC regulatory functions be combined in a single "Transportation 
Regulatory Agency." It concludes, however, that promotional func- 
tions should be consolidated in a separate agency; accordingly the CAB's 
subsidy functions are proposed to be transferred to the Department 
of Transportation (DOT).^* 

As with the FTC and trade regulation, there is no dearth of critical 
commentary on the sad state of our transportation affairs,^^ a fact which 
should counsel brevity here. But the far-reaching importance of the 
problems presented, and the current interest in reform invites a more 
extended commentary. 

The Problem 

The Council's general findings on the division of authority and the 
absence of coordinated, coherent transportation policy seem undeniable. 
It is M^orth emphasizing, however, that the problem goes beyond regu- 
lation, in the restricted sense of that term. The confusion, inconsistency 
and plain irrationality (except in political terms) of policy is even more 
dramatically evident in the federal government's promotional activities. 
Consider, for example, the disparate treatment of the airline and the 

with which it is sometimes compared. But more to the point is the fact that the 
proposals typically made for such reorganization have been so obviously based on 
an ideological attachment to executive primacy. These proposals have called for 
consolidation of authority in an executive branch agency despite the fact that one 
of the primary and recurrent criticisms of spectrum management has been directed 
at the inefficient use (and stockpiling) of frequencies by executive agency users— ^ 
phenomenon which would suggest to me that if authority should be centralized any- 
where, it should not be in an executive agency but in an independent agency. 

84 Ash Counctl Report, supra note 3, at 61-85. 

^^ For general studies, see Special Stldy Group for the Senate Comm. on Interstate 
AND Foreign Commerce, 87th Cong., 1st Sess., Report on Transportation Policies in 
the United States pts. Ill & IV (1961) [hereinafter cited as Doyle Report], which 
also cites numerous earlier critical studies and commentary. Earlier general studies are 
also briefly reviewed in ICC Bureau of Transport Economics and Statistics, Juris- 
dictional Conflicts and the Coordination of Transportation, 30-44 & App. C (1960) 
[hereinafter cited as Report on Jurisdictional Conflicts]. A polemical but worthwhile 
recent study of surface transportation by "Nader's Raiders" is R. Fellmeth, supra note 
50. For criticisms of regulation itself, see sources cited injra note 115. 

493-361 O - 73 - 17 


passenger train.^^ In fiscal 1970 direct federal subsidies to support local 
service airlines totaled nearly 41 million doUars,^^ but no such federal 
subsidy was given in that year to support passenger (or any other) 
trains. And these direct operating subsidies to local air carriers do not 
include the provision of services by the FAA, for which the airlines 
are incompletely charged.^* Nor does it account for expenditures to 
promote air transportation in general— for example, grants-in-aid for 
construction of airport facilities and research and development expendi- 
tures.^ Apart from some limited research and development expendi- 
tures for high speed rail s'ervice,^ no comparable federal support is given 
to promote intercity rail transportation. To be sure, the recently enacted 
Rail Passenger Service Act of 1970*^ provides for the establishment of 
a quasi-public corporation, financed in part with federal funds, to take 
over and upgrade passenger train service on key intercity routes, but 
the venture is (so far) a modest one both in scope of operations'^ and in 
the extent of financial support it provides for improving and maintaining 

86 The problem is most sharply portrayed by Louis Hector's example of the CAB's 
practice of subsidizing airline service to small communities while at the same time the 
ICC was permitting discontinuance of passenger train service to such communities. 
Neither agency's policies were coordinated with the other or integrated into an overall 
coherent transportation plan. Hector, supra note 7, at 949. 

87 CAB, Report on Subsidy for United States Certificated Air Carriers, 1 ( 1969) . 

88 5ee D. LocKLiN, The Economics of Transportation 764-65 (6th ed. 1966); Nelson, 
The Pricing of Highway, Airway, and Waterway Facilities, 52 Am. Econ. Rev. 426, 
433-34 (1962). 

89 Grants to assist construction of airport facilities amounted to some $103.4 million 
in obligated funds in fiscal 1969. See 1969 DOT Ann. Rep. 85. Some, but not all, of 
the costs of airport services are recouped by user fees. Locklin, sj/pra note 88, at 
769-70. See also Levine, Landing Fees and the Airport Congestion Problem, 12 J. Law 
&EcoN. 79 (1969). 

90 1969 DOT Ann. Rep. 156-62. 

91 Pub. L. No. 91-518, 84 Stat. 1327 (1970). 

92 The basic route structure is described in DOT, Preliminary Report on the Basic 
National Rail Passenger System (1970). Some additions to this initial system have 
since been made, and doubtless more will be made. Overall, however, the system will 
remain modest in scope since all of the routes chosen were selected partly because of 
their potential for early profitability. Id. at 3. 

The system supplants present inter-city passenger service with a scaled-down system. 
Railroads now operating passenger train service are relieved of their present responsi- 
bility to provide such service upon purchase of stock in the new National Railroad 
Passenger Corporation ("Amtrak") in an amount calculated with reference to the rail- 
roads' current passenger train deficit. Railroads which choose not to participate are 
required to continue their present passenger service for five years. In practical terms 
what this means is that the extent of service has been greatly reduced in scope in hopes 
that a viable, improved quaUty service will be developed. 


passenger train service.^* In itself the Act does not begin to correct the 
present imbalance in promotional support given intercity passenger 
transportation. Direct subsidization and other promotional aids to air- 
lines and airline transportation generally still dwarf the limited support 
of passenger train service as it is now planned. 

The disparity in treatment of airline and passenger train service tells 
but part of the story. The Federal Highway Administration (within 
DOT) currently spends several billion dollars annually on interstate 
highway construction, which, when added to what the states contribute, 
is certainly a very substantial promotion of the commercial motor 
transportation which benefits from it. Of course, the total highway 
expenditure is not subsidy to motor transport since financing comes 
largely from user fees (though it should be noted that user fees cover 
neither the cost of congestion nor the other social costs of highway use— 
for example, pollution, neighborhood disruption, and noise) ."* But even 
with user financing, highway users obtain a very large benefit (subsidy 
in fact if not in name) in that they do not have to pay private capital 
interest rates for the investment, nor do they pay property taxes on the 
right of way; railroads on the other hand must incur both costs in pro- 
viding their own right of way.^^ What the Highway Administration 

93 The corporation (organized along the lines of Comsat) is financed by selling 
stock to the railroads, and by an initial grant of $40 million from the government. In 
addition it will receive SlOO million in loans and guarantees for upgrading road beds 
and acquiring rolling stock, and $200 million in government loans and guarantees will 
be authorized to underwrite the cost incurred by the railroads buying stock in the 
corporation. The government's modest financial support and the underlying premise 
that the system must become self-supporting in the immediate future has been criticized 
for being unrealistic and inconsistent with the larger and continuing support of other 
transport services. See Wicker, A Railroad Euthanasia Plan?, N.Y. Times, March 25, 
1971, § L at 39, col. 1. I agree. 

8* Current federal expenditures are in excess of five billion dollars annually. 1969 DOT 
Ann. Rep. 99. The dominant portion of this expenditure is financed through the 
Highway Trust Fund, which is created primarily from taxes on fuel and tires. Thus, 
much of the direct costs of highway construction and maintenance is borne by users. 
See D. LocKLiN, supra note 88, at 628-29. But the indirect costs of highway use— con- 
gestion and pollution costs, for example— are not internalized by users. See A. Fried- 
lander, The Interstate Highway System 129-31 (1965); Subcomm. on Economy in 
Government of the Joint Economic Comm., 91st Cong., 2d Sess., Report on Federal 
Transportation Expenditure 4-7 (Joint Comm. Print 1970). 

85 C. Dearing & W. Owen, National Transportation Policy 126-27 (1949). See 
generally J. Nelson, Railroad Transportation and Public Policy 67-110 (1959). The 
point seems particularly important in light of the railroads' current need for huge 
amounts of capital for modernization of road beds to accommodate high-speed trains; 
these funds appear to be beyond their present capacit)'' to obtain from the private 
sector in view of their poor financial condition. In this regard it is noteworthy that the 


does for motor transportation the Corps of Engineers does for domestic 
water transportation, where the subsidy is even more dramatic because 
bargelines, unhke motor carriers, generally pay no user fees.®^ 

The striking thing about all of this is not simply that the government 
is proceeding unevenly in promoting alternative modes of transportation, 
but that it is doing so in a policy vacuum with no overall rational evalu- 
ation of alternative transportation investments or promotional policies.^^ 
The importance of this problem of uneven government promotion can- 
not be stressed too much; for perhaps even more than regulation, pro- 
motional policies have shaped the character of the transport industries 
today. Concededly, there is much more to this problem than organi- 
zational divisiveness. As far as purely promotional policies are con- 
cerned, the dominant portion of current federal largess is already 
administered by a single agency, DOT; and further centralization is 
unlikely to accomplish very much at the present time, particularly in 
light of the Department of Transportation Act which denies DOT the 
authority to develop or modify present investment policies and stand- 

railroad industry has recently asked Congress for federal financial aid in a variety of 
forms to enable them to meet capital improvement programs, including, for example, up 
to. $400 million a year (for over eleven years) for roadway and terminal improvements 
to be financed by user fees as in the case of highways. See Wall St. J., March 31, 1971, 
at 2. But the prospect of such aid being granted, particularly in the current economic 
situation, is not bright. 

Of course, early railroad construction was subsidized by federal, state and local gov- 
ernments. See D. LocKLiN, supra note 88, at 101-11. Estimates of the total value of this 
aid vary downward from a high of $1.4 billion which is probably too high. D. 
Pegrum, Transportation: Economics and Public Poucy 473 (rev. ed. 1968). But 
whatever the value, several points need to be emphasized: First, a substantial part of 
the aid was in the form of federal land grants in return for which the rails were re- 
quired to give reduced rates to government shipments (until 1945). There is agree- 
ment that these reduced rates more than repaid the federal government the value of its 
subsidy. S. Daggett, Principles of Inland Transportation 740-41 (4th ed. 1955). 
Second, any subsidies which remain unrepaid by the rails are no match for the massive 
outlays for other transport modes in recent times. Third, in any event past subsidies 
have little significance to the question of allocating current costs and resources. See 
D. Locklin, supra note 88, at 835-36. 

96 See A. Maass, supra note 18, at 159-88. Barge lines pay user fees only on the 
St. Lawrence Seaway and the Panama Canal; proposals for establishing general user 
fees, either in the form of tolls or fuel taxes, have been repeatedly made but none 
has been successfully implemented. See D. Locklin, supra note 88, at 724, 730-34, 836-37; 
Don-E Report, supra note 85, at 202-09. 

!>■' See Report on Federal Transportation Expenditure, supra note 94. The criticism 
is an old and often repeated one. See, e.g., C. Dearing & W. Owen, supra note 95, at 
351-78; Doyle Report, supra 85, at 170-71. 

»849 U.S.C. §§ 1653(b), 1656(a) (Supp. V 1970). The first of these sections denies the 


In the economic regulatory policies administered by the CAB, FMC 
and ICC there are again incongruities in the statutes and legislative 
policies to which full attention must be given. But here the problem 
of institutional structure seems clearly larger than in the case of the pro- 
motional functions. The major problem is not one of jurisdictional 
conflict in the sense that a company subject to the jurisdiction of two 
agencies might face incompatible regulatory orders. Although there is 
overlapping jurisdiction in a number of areas— such as through routes 
and joint rates, intermodal consolidation, freight forwarder authoriza- 
tion—where agencies can "conflict" in the sense that application of 
difi^erent policies can impede or stalemate intermodal services, the 
actual instances of conflict appear to be relatively few and of rather 
limited significance in the overall system.®^ The more substantial cause 
for dissatisfaction with the present system lies in the myopic institutional 

Secretary authority to make or revise "any transportation policy" or "any investment 
standards or criteria" without congressional authorization. The second re-enforces this 
latter restriction by denying to the Secretary any authority or responsibility to develop 
investment standards for, among other things, "water resource projects" or "grant-in- 
aid programs authorized by law". The denial of authority over grant-in-aid programs 
effectively prevents any changes by the Secretary in promotional spending under such 
important programs as the Federal Aid Highway Program and the Federal Airport 
Program. See 1 Subcomm. on Economy in Government of the Joint Economic 
CoMM., 91sT Cong., 1st Sess., Analysis and Evaluation of Pubuc Expenditures: The 
PPB System 412-15 (Joint Comm. Print 1969). 

^^ See Report on Jurisdictional Confucts, sitpra note 85, at 4-29, for a useful, 
concise description of "areas of conflict in authority"— regulation of through routes 
and joint rates, intermodal service and rate competition, intermodal ownership and 
control, and freight forwarder authorizations. See also Doyle Report, supra note 85, at 
120-152. Though both of these reports bear out the absence of effective coordination 
among the respective agencies and the existence of inconsistencies and incongruities in 
statutory and agency policy, neither reveals cases of actual conflict in specific agency 
actions. A more recent discussion, Barrett, The Trouble With Separatism, 37 I.C.C. 
Prac. J. 721 (1970), notes two cases in which conflict has recently developed. The 
first involved a rather petty squabble between the ICC and FMC with respect to juris- 
diction over joint rates covering domestic surface transportation and international 
ocean shipping. The second involved a conflict between the ICC and the CAB over 
the scope of pick-up and delivery operations within airport terminal areas. A third 
potential confllict which Barrett identifies is between ICC and FMC over so-called 
LASH (lighter-on-ship) operations involving barge lines subject to the ICCs juris- 
diction and ocean carriers subject to the FMC's jurisdiction. But no actual conflict 
has yet arisen. A fourth potential conflict which he identifies, but which has not 
materialized, is jurisdiction over intermodal consolidations; however, the two principal 
agencies involved, the CAB and the ICC, have so greatly restricted such consolidations 
that this coTiflict does not now seem imminent. The real problem here lies not so 
much in the jurisdictional conflict as in the needlessly restrictive policy itself— though 
in part the extent of the restriction is no doubt aggravated by the narrow institutional 
perspective of the respective agencies. 


perspective in which regulatory policy is made: though generally com- 
patible at an operational level, the different agencies and the policies 
which they enforce do not reflect a coherent, rational transportation 
policy. Each agency pursues a narrow regulatory course without regard 
to the policies of its sister agencies or the broader interests of the trans- 
portation system. 

The Need for Reorganization 

In response to the question what should be done, the answer which 
has generally prevailed is simply to make a diligent effort to use existing 
mechanisms of coordination— including presidential influence— to work 
toward a broader, more unified policy.^^ The Ash Council rejects this 
"remedy" as inadequate, and on the basis of experience to date its con- 
clusion seems correct. ^"^ We can quickly dispose of the possibility of 
any significant improvement coming from a further exhortation to the 
agencies themselves. Such pleas have been made with notable lack of 
success.'"" Nor is it likely that much can be achieved through executive 
control. Presidential control over appointments can have a significant 
eff^ect on the direction a particular agency will take, as was earlier 
noted, and one can point to occasions where the impact of a particular 
administration's appointments has been immediately apparent in shaping 
an agency's general approach and policies.'"^ It is difficult, however, to 
identify many situations where the power of appointments has been 
used effectively to coordinate and integrate policy in the broad area 
of transportation. Not much more can be expected in the absence of 
institutional ties among the agencies themselves to reinforce the oc- 
casional efforts made by agency members themselves. For reasons ex- 

100 5ee, e.g., J. Landis, supra note 19, at 77; First Hoover Commission Report, supra 
note 2; Task Force Report on Regulatory Commissions [App. N] at 91 (1949). In com- 
mending the status quo, the Hoover Commission and Task Force Report went counter 
to the recommendations of the Special Task Force Report on Transportation, prepared 
by the Brookings Institution, C. Dearing & W. Owen, supra note 95, which recom- 
mended consolidation of the CAB, FMC and ICC. 

101 Ash Council Report, supra note 3, at 75-76. 

102 Formally, a committee for interagency policy coordination among the ICC, 
CAB, and FMC exists. See 1969 CAB Ann. Rep. 43; but so far as I can discern, it 
expends little effort in attempting to develop integrated general policy and certainly 
no such integration is evident in the policies of the agencies. Other interagency com- 
mittees and joint boards have been established from time to time for coordination on 
relatively minor, operational problems, id. at 43-46, with little if any effect on general 

103 See H. Friendly, supra note 24, at 94, 97-98, noting shifts in CAB policy following 
new appointments. See generally VVelborn, supra note 14. 


plored earlier it is also unrealistic to suppose that merely giving the 
president some authority to influence commission policy would achieve 
the desired coordination;^*'* for if that alone were suflicient, there would 
not be a similar lack of coordination among the agencies already subject 
to the President's direction and authority.^**^ 

The possible contribution of the Department of Transportation to 
the coordination and management of transportation policy remains to 
be considered. Though established primarily to bring together major 
safety and promotional activities in the field of transportation/^^ DOT 
was also given the role of providing "leadership in the development of 
national transportation policies and programs." ^^^ Whether it can fulfill 
its mandate both to coordinate the actions and policies of the agencies 
and to take the initiative in guiding the development of broad trans- 
portation policy is another matter. To date the Department's accom- 
plishments in the area of overall policy development have been modest 
(though in a number of respects encouraging).^"^ I doubt that we can 

1*^ See E. Redford, supra note 6, at 317-24, which proposes to give to the President the 
power to issue policy directives to the agencies. As a concession to congressional pre- 
rogative, Redford suggests the possibility of permitting congressional veto of presidential 
directives, but he does not favor such a veto power, id. at 320. Redford's proposal is 
inadequate; indeed, it would likely only add another erratic element to an already con- 
fused pattern of responsibility. Cf. H. Friendly, supra note 24, at 153. 

105 See notes 21-23 and accompanying text supra. 

106 80 Stat. 931 (1966), 49 U.S.C. § 1651 et seq. (Supp. 1970). Not all promotional 
functions were transferred to DOT. Airline subsidies were left with the CAB on the 
rationale that they were intimately related to airline route certification. Hearings on 
S. 3010 Before the Senate Cormn. on Government Operations 89th Cong., 2d Sess., 
Pt. 1, at 42 (1966). Promotional functions of the Corps of Engineers (for example, con- 
struction and maintenance of canals and harbor facilities) were left with the Corps 
ostensibly because these functions were inseparable aspects of more general waterway 
development purposes. Id. at 42. Administration of maritime subsidies was left with 
the Federal Maritime Administration (nominally within the Department of Commerce). 
This was a necessary concession to the maritime industry and unions who foresaw a 
lessening of their influence if these functions were transferred to DOT. See 112 Cong. 
Rbc. 26563, 265464, 26567 (1966) (remarks of Senators Jackson and Ribicoff). 

107 80 Stat. 931 (1966), 49 U.S.C. § 1653(a) (Supp. V 1970). 

108 DOT has participated as an intervenor in a number of cases (of varying im- 
portance). See 1969 DOT Ann. Rep. 22-23; G. Davis, The Department of Trans- 
portation, 187-89 (1970). Rate increases were among the first concerns of DOT. See 
Business Week, June 24, 1967, at 39 (letters from Secretary Boyd to the ICC and the 
CAB, warning of the inflationary pressures of rate increases). And they are still of 
prominent concern, see Wall St. J., May 21, 1970, 5, col. 2 (concerning DOT's opposition 
to rail freight rate increases); Wall St. J., Aug. 31, 1970, 6, col. 1 (concerning opposition 
to air fare increases). Admittedly DOT's participation as an intervenor in major cases 
does go beyond mere negative reaction to rate increases. An example is its participation 
in the CAB's Domestic Passenger Fare Investigation, Docket 21866-5, where DOT 


reasonably expect much more from DOT. Even with a more substan- 
tial effort to set broad general policy there is great doubt that DOT 
can influence economic regulatory policy sufficiently to give it the co- 
herence and rationality it now lacks. However strongly the Depart- 
ment may assert its nominal "leadership" in developing transportation 
policy, the reality is that the regulatory power over economic affairs 
remains in the hands of those independent regulatory agencies, each of 
which traditionally has jealously guarded its own particular mandate 
from Congress and its independence from other agencies and "outside" 
concerns. To overcome this traditional attitude (which is reinforced by 
the efforts of respective clientele groups to receive distinctive treatment 
and to change the resulting pattern of regulation) will require heroic 
leadership by DOT, and by the President personally, even given a suit- 
ably integrated regulatory framework. Without such a framework the 
task seems overwhelming. 

At least as a first step toward greater integration of transportation 
policy, therefore, the case for consolidation seems quite plausible. Cer- 
tainly it has been widely commended,^^ except among certain of the 
transportation industries.^^" 

The details of the countless number of reorganization proposals that 
have been made over the years vary considerably. No useful purpose 
would be served by reviewing them here; however, two general ob- 
servations prompted by the Ash Council's proposal deserve mention. 
In recommending consolidation the Ash Council proposes placing the 
combined regulatory functions of the CAB, FMC and ICC in an exec- 
challenged current airline discount fares on grounds of economic principle which 
have major importance to the establishment of airline fare structures." Undoubtedly 
this kind of involvement by DOT can make a useful contribution to coordinating and 
rationalizing regulatory policy. But the scope of potential participation in this manner 
is rather limited. Moreover, few of the issues which DOT has concentrated on thtis 
far are basic to the rationalization of the transport system as a whole— but it is r> 
basic issues which DOT seems especially suited to address. 

109 In addition to the Ash Council Report, supra note 3, see the list of past studies 
and proposals in Doyle Report, supra note 85, at 97-98, and Report on Jurisdictional 
Conflicts, supra note 85, at 30-44 & App. C (1960). 

110 It was evidently the result of industry opposition, particularly from truckers, that 
proposals for consolidation of economic regulation were excluded early from the plans 
for the Department of Transportation. Opposition from trucking and maritime in- 
terests also successfully thwarted effective integration of promotional policies in DOT. 
See P. Anderson, supra note 17, at 354-63; G. Davis, supra note 108, at 88-105. The 
railroads have, however, been more favorably disposed to consolidation; currently they 
have urged Congress to consider it, along with some major policy changes (most 
notably loosened regulation). See Wall St. J., March 31, 1971, at 2, col. 3. 


utive agency separate from the Department of Transportation, and at 
the same time proposes transferring all specific promotional functions 
(such as airline and maritime subsidization), and all general promotional 
responsibilities of these agencies (for example, the CAB's statutory man- 
date to "promote air commerce") to DOT.^^^ 

There are two issues here: [1] whether regulatory functions should 
continue to be performed by independent agencies, and [2] whether 
regulation should be separated from promotional functions. As to the 
first, I have already attempted to show that the argument for executive 
control, at least as it is presented by the Ash Council, is not compel- 
ling. As was also noted, however, a change to executive organization 
might nevertheless be appropriate if such a change would facilitate, for 
example, needed integration or consolidation of functions. Here func- 
tional integration might be enhanced if transportation regulation were 
to be transferred to DOT, but since that is not the Ash Council's pro- 
posal there seems to be no compelling reason for insistence on an agency 
in the executive branch. On the other hand a strong argument might be 
made for combining the promotional and regulatory functions in DOT. 
The argument would be that the tension between promotional and regu- 
latory aims which »<: often cited -^ reason for separating the two'^^ is 
really a reason for consolidating them in the same agency to ensure spme 
workable and necessary compromise between the two aims. Assuming 
that both aims will continue to co-exist— that we are, for example, going 
to continue to promote as well as regulate airline service— there is no 

iiiAsH Council Report, supra note 3, at 61. Part of the rationale is that these func- 
tions are not compatible. Id. at 77, 79-81. This view is shared by others, see Hector, 
supra note 7, at 953-57; Doyle Report, supra note 85, at 100-15. This reason is 
plausible but debatable, as noted below. There is, however, another rationale given by 
the Council which is simply mystifying in its inconsistency. It is that consolidation in 
DOT would make "transportation regulation an executive function exclusively" and 
this would subject the regulation too much to "political influence from the administra- 
tion without adequate checks and balances exercised by the Congress." Ash Counol 
Report, supra note 3, at 77. I am at a loss to understand this reasoning since it nowhere 
appears in the Ash Council Report that its proposed Transportation Regulatory Agency 
would be an independent agency, and the general recommendations made elsewhere 
in the Report clearly propose that the single administrator of this and other reorganized 
agencies be directly answerable to the President. Id. at 40-41. Several inferences can 
be drawn from this anomaly: Perhaps the reasons given by the Council to support its 
recommendations are not the real ones but were constructed after the fact. Or perhaps 
when it came to explaining the details of its transportation proposals the Council forgot 
the earlier proposals upon which a major part of its entire critique was based. Or p>er- 
haps it was simply confused. I am inclined to think all three possible inferences are 
partially correct. 

112 See, e.g., Hector, supra note 7, at 953-57. 


promise that any conflict between these two aims will disappear by giv- 
ing each to a difi^erent agency. Moreover, the functions are so closely 
interrelated that sound policy planning requires that they be integrated 
in some way."^ 

The Need for Substantive Reform 

Up to this point reform of transportation regulation has been dis- 
cussed only in terms of administrative reorganization, which is an 
important, first task of reform. But real reform is never achieved simply 
by shuffling organization charts. Major emphasis must be given to 
restructuring the substantive legislation and policies which underlie the 
administrative structure, with a view to reconciling inconsistent statutes 
and particularly to eliminating unnecessary, outdated, or simply un- 
sound regulatory provisions and policies. 

That the immediate task is to reconcile inconsistencies in the statutes 
underlying transportation regulation is clear."* Indeed, the need for 

113 As an example consider the case of airline-passenger train service to smaller 
communities, which is often cited to illustrate the lack of coordination in transportation 
policy. See note 86 supra. The apparent inconsistency in subsidizing socially costly 
airline services and permitting (even encouraging) rail passenger service discontinuances 
arises not from a conflict in regulatory policies but from the absence of a coherent 
policy for promotion and regulation together. The overriding question is what is an 
optimal allocation of transport resources and how can it be achieved through the 
devices of regulation, promotion, and competition. Optimal allocation will not be 
achieved by merely consolidating the regulatory responsibilities of the CAB and the 
ICC; coordination between the regulatory functions and the promotional functions of the 
CAB (in particular airline subsidies) and the various promotional responsibilities of 
the Department of Transportation (such as current and proposed financial aid to rail 
service, airport grants-in-aid, highway construction expenditures and the overall trans- 
portation policy planning responsibility of the Secretary in general) must be obtained. 

ii^The patchwork of subsidies and other promotional schemes is consistent in only 
one feature— discrimination against rail transportation. See notes 86-98 and accompanying 
text supra. Similarly, the treatment of exemptions is uniform only in its tendency to 
discriminate against rail transportation. For example, water carriers are exempt from 
regulation of bulk commodities, trucks are exempt from regulation of agricultural com- 
modities, but railroads, which compete for this carriage, are not. They are therefore 
subject to the strictures of minimum rate controls. See Hearings on Review of the 
Interstate Commerce Commission Policies and Practices Before the Subcomm. on Strrface 
Transportation of the Senate Comm. on Commerce, 91st Cong., 1st Sess., ser. 91-16 at 
303 (1969). The ICC's "solution" to this problem is to increase regulation and to 
eliminate the exemptions. Id. See also Doyle Report, supra note 85, at 515-33. That 
solution seems to me to be precisely the opposite of the correct one. It is, of course, 
reminiscent in every aspect of Congress' "solution" to the problem of rail-motor com- 
petition in 1935, which was to eliminate the disadvantage to the regulated rails in com- 
peting with unregulated motor carriers by extending regulation to the latter rather 
than reducing regulation of the former. See note 117 irrfra, which shows how re- 
markably little has been learned from a quarter century of experience with regulation. 


such an effort is so obvious a task for reform that one can only wonder 
at the narcoleptic response of Congress to every invitation to act. 

Beyond the problem of reconciling policy conflicts, however, there 
is the much larger and more important task of pruning the scope and 
extent of regulation itself. Today there is consensus among economists 
and growing agreement among lawyers that the present transport sys- 
tem is overregulated, and that stringent controls have prevented effi- 
cient utilization of transport resources and impeded the development of 
an adequate transport system."^ Without pretending to be a long 
time and outspoken critic of regulation I must record that increased 
familiarity with the system persuades me now to agree. There is no 
convincing economic or social justification for continuing, and cer- 
tainly not for increasing, current regulatory schemes. The original 
justification for transportation regulation was based on the monopoly 
position (sometimes said to be "natural") of railroads. Whether or 
not this justification was ever the true force behind regulation,"** 
its validity has been completely destroyed by the advent of inter- 
modal competition. And, of course, control of monopoly was not 
even an ostensible rationale for extending regulation to other modes of 
surface transportation, where regulation was imposed for the purpose 
of controlling competition.^" As for air carriers, the main reasons 

116 Even "Nader's Raiders," who are hardly noted as advocates of economic laissez- 
faire policies, have concluded that there is too much regulation of some parts of the 
transport system. R. Fellmeth, supra note SO, at 119-35, 143-46. The case for gen- 
eral deregulation throughout the system is cogently presented in J. Meyer, M. Peck, 
J. Stenason, & C. ZwicK, The Economics of Competition in the Transportation 
Industries 242-73 (1959). For other recommendations for relaxation of transport regula- 
tion generally or in specific areas, see Department of Commerce, Report on Federal 
Transportation Policy and Progress (1969) (the Mueller Report); Presidenfal Ad- 
visory CoMM. ON Transport Policy and Organization, Revision of Federal Trans- 
portation Policy (1955) (the Weeks Report); R. Caves, Air Transport and Its Recu- 
TORS 447-49 (1962); J. Nelson, supra note 95, at 431-35; Turner, The Scape of Antitrust 
and Other Economic Regulatory Policies, 82 Harv. L. Rev. 1207, 1231-35 (1969). 

116 See G. KoLKo, Railroads and Regulation: 1877-1916 (1965), which presents a 
"revisionist" view that the dominant force behind railroad regulation even in the early 
era was the railroads' desire for protection from competition. 

ii'^^For a review of the legislative rationales for the regulation of trucking, see W. 
Jones, Cases and Materials on Regulated Industries 487-99 (1967). A major justifica- 
tion was that, since railroads were already regulated, so in fairness must their comf>etitors 
be also regulated. This argument falls of its own weight. In that its premise undermines 
the original reason given for regulating railroads, a logical response would have been to 
deregulate, in part at least, the railroad industry. The second major argument— that 
free competition tended to be "excessive" and promoted instability and dangers to 
safety, American Trucking Ass'ns v. United States, 344 U.S. 298, 312 (1953)— might 
seem a more plausible reason for regulaton but the threat of over competition has been 


offered for regulation drew support from both theories, controlling 
monopoly and controlling competition^^^— a triumph of eclectic con- 
fusion over clearly defined purpose. Overall, the motivations and the 
dominant tendencies of regulatory legislation and administrative policy 
since 1920"® have clearly been to curb competition in transportation. 
The trend has gone too far. Without attempting a full documentation 
of this assenion I offer a few well-known examples to outline the 
shape of the complaint. 

One case in point is the minimum rate control which has been enthu- 
siastically exercised by the ICC to curb rate competition between rail, 
motor and water carriers. Even if it is assumed that some degree of 
minimum rate regulation is justified to check the threat of "predatory 
pricing"— an assumption which is indulgent in exaggeration if not il- 
lusions^— it is hard to defend the ICC's use of such power to invalidate 
rates which equal or exceed long-run, marginal ("incremental") cost.^^^ 

shown to be largely illusory. In any event, the prevention has been worse than the sup- 
posed illness. See R. Fellmeth, supra note 50, at 119-35; J. Meyer, mpra note 115, at 
215-22, 263. Since the strongest support for regulation came (and still comes) from 
the motor carrier industry and not the shippers or the public, see W. Jones, supra, it is 
apparent that the rationales given have little to do with the real force and motivation 
behind the regulation. 

118 As noted by Professor Jones, W. Jones, supra note 117, at 736-38, regulation 
drew from opposite theories: the threat of excessive competition on the one hand and 
the threat of possible monopoly on the other. Neither fear was, or is, realistic. The 
latter "threat" was more the outgrowth of the cartel policy of the prior regulatory 
scheme than of inherent market structure. Id. at 738. See also R. Caves, supra note 
115; W. Jordan, Airline Regulation in America (1970). The tendency to mo- 
nopoly has not, however, been the most prominent justification for continuing 
regulation; rather the opposite threat of excessive competition— a threat thought to 
present dangers not only to economic stability but to airline safety as well— has been 
most heavily relied upon. Here again the argument was, and is, inherently suspect 
because it was advanced by the existing carriers; to the extent there was ever any real 
basis for concern it occurred in an era that had passed before regulation was 
inaugurated, see W. Jones, supra at 736. Modern investigations show no basis for sup- 
posing excessive competition would develop today in the absence of regulation. See 
R. Caves, supra note 115, at 431; W. Jordan, supra at 242-43. 

119 It is commonly acknowledged that the enactment of the Transportation Act of 
1920 signaled a major shift of public policy from an ostensible policy of curbing 
monopoly to one of cartelizing the transport industry, which at that time, of course, 
was the railroads. See Boies, Experiment in Mercantilism: Mirmmcm Rate Regulation 
By the Interstate Commerce Commission, 68 Colum. L. Rev. 599, 609 (1968). 

120 See J. Meyer, supra note 115. 

121 For an excellent analysis of the course of policy over the years, see Boies, sjipra 
note 119, at 630-37. In ICC v. New York, N.H. & H.R.R., 372 U.S. 744 (1963) the 
Supreme Court admonished the Commission for its overly protectionist policies in 
applying the "inherent advantages" concept to hold up rates of one mode (typically 


The result has been to impose higher freight charges on shippers (and 
ultimately consumers) and generally to misallocate transport resources. 
Another important example of regulatory protectionism is the ICC's 
control of entry and restrictions on operating rights in the motor car- 
rier field. The rationales for these policies— curbing "excessive" compe- 
tition among the carriers and putting them on an "even plane" with the 
regulated railroads— are in themselves difficult to accept.^^- Moreover, 
even if valid, they would not justify the extraordinarily rigid barriers 
which the ICC has set up— barriers which create inefficient operations, 
wasteful overcapacity and higher costs.^^ The httle competition that 
passes through the ICC's regulatory filter is strained still further by the 
rate bureau,^^^ until only the thinnest of competitive substance remains. 
The resultant social cost of this cartel policy can only be guessed. Per- 
haps the most positive thing one can say about it is that it is partially off- 
rails) simply to protect competitors. But the Court did not deny that the ICC could 
use its minimum rate power to protect a mode which had the "inherent advantage" 
of being a lower cost carrier. In the Ingot Molds case, American Commercial Lines, Inc. 
V. Louisville & N.R.R., 392 U.S. 571 (1968), the Court upheld the ICC's policy of de- 
termining inherent advantages by comparing the "fully distributed costs" of the re- 
spective carriers, rejecting the argument of the railroads that the standard should be 
so-called "out of pocket" costs (a cost which does not necessarily conform to the 
economist's concept of incremental or marginal cost but which probably approaches it 
in the long run). The ICC has recently redefined its fully distributed (now called 
"fully allocated") costs in a way which brings them closer to marginal cost, but the 
two are still not identical. See Rules to Govern the Assembling and Presenting of Cost 
Evidence, 337 I.C.C. 298 (1970). Moreover, the change in definitions of cost does not 
itself effect a change in ratemaking standards. Id. at 325. 

The economic irrationality of using fully distributed (or "fully allocated") costs as 
a standard for pricing decisions and regulatory control has been widely noted. See, e.g., 
Boies, supra note 119, at 637-47; Roberts, Transport Costs, Pricing and Regulation, in 
Transportation Economics 3-37 (Nat'l Bureau of Econ. Research, 1965); Baumol, 
Bonbright, Brozen, Dean, Edwards, Hoover, Pegrum, Roberts, Williams, The Role 
of Cost in the Minimum Pricing of Railroad Services, 35 J. of Bus. 357-66 (1962). 
It is especially noteworthy in this regard that when competition is with an unregulated 
mode (an exempt or private carrier), the ICC permits the regulated carrier to set prices 
below fully distributed costs, down to out of pocket costs, on the rationale that un- 
regulated carriage is beyond the pale of protection accorded by the National Trans- 
portation Policy. See Grain in Multiple-Car Shipments— River Crossings to the South, 
321 I.C.C. 582,589 (1963); 325 I.C.C. 752, 772 (1965). See also the Ingot Molds case 
supra, 392 U.S. at 593. 

122 See note 115 supra, for a discussion of the rationale of regulation. 

123 See, e.g., Nelson, The Effects of Entry Control in Surface Transport, Transporta- 
tion Economics, supra note 121, at 381-422; J. Meyer, supra note 115, at 218-19. Par- 
ticularly indefensible are the restrictions which the ICC imposes on operating rights and 
which have sometimes gone to ludicrous extremes in atomizing service authority. For 
illustrations, see R. Fellmeth, supra note 50, at 120-31. 

124 For criticism of the rate bureaus, see R. Fellmeth, supra note 50, at 136-41. 


set by the growth of exempt carriers.^^^ If that can be considered 
praise, it is damningly faint. 

In the air transport field restrictions on intramodal competition have 
produced some parallel consequences. The CAB's vacillating pro- 
nouncements on competition have earned it considerable ill-fame;^^ 
and its practical implementation of policy deserves similar credit. While 
the CAB has— particularly since the late 1950's— generally favored com- 
petitive entry in airline markets, it has often imposed inefficiency by 
restricting route authorizations in order to limit competition.^^' More 
importantly it has significantly restrained inter-airline price competition 
—denying the public the principal benefits of competition— while en- 
couraging in its stead a degree of service rivalry that has produced costly 
overcapacity for the airlines."® 

I shall not attempt to elaborate further; to do so would take me far 
afield. It need only be noted that the consolidation of commissions as 
proposed is compatible with needed relaxation of regulatory controls. 
Indeed by expanding the regulatory perspective, consolidating the com- 
missions may be more conducive to such relaxation than the present 
structure. At first blush this proposition may strain our belief, accus- 
tomed as we are to thinking of the merger of agencies as a means of 
expanding government activit\'^ and control. And I do not assert that 
consolidation will result in deregulation, but merely that the broader 
perspective that can thereby be derived may be more congenial to it. 

Congress itself shows little dedication to the task of deregulation, and 
no agency or well organized group has appeared to push it strongly 
in that direction. The transport industries (with the possible exception 
of the railroads) certainly have not been eager for changes in the pro- 

125 See Cramton, The Effectiveueis of Economic Regulation: A Legal View, 54 
Am. Econ. Rev. May, 1964, at 182. 

126 5ee H. Friendly, supra note 24, at 74-105; Westwood, Choice of the Air Carrier for 
New Transport Routes, 16 Geo. Wash. L. Rev. 1, 159 (1947-48). 

127 5ee R. Caves, supra note 115, at 192-93. For a recent example, see Southern Tier 
Competitive Nonstop Investigation, Supp. Opinion and Order, CAB Order 69-9-111 
(1969). Perhaps it is unfair to blame the CAB for imposing restrictions such as those 
in Southern Tier, since to some extent they are required by the basic legislative policy 
which supports controlled competition. But the basic complaint against over regulation 
remains no matter who is the instigator. 

128 See R. Caves, supra note 115, at 251; W. Jordan, Airline Regulation in America 
34-72 (1970); Silberman, Price Discrimination and the Regulation of Air Transporta- 
tion, 31 J. Air L. & Com. 198, 221-39 (1965). There is also evidence substantiating 
what intuition suggests— that the restraint of competition has substantially retarded 
management's efficiency in controlling operating costs. See Gordon, Airline Costs and 
Managerial Efficiency, in Transportation Economics, supra note 121, at 60, 90-91 (1965). 


tecrionist regulation; and the general public is not adequately organized 
for effectively influencing action, even if it were sufficiently informed 
to muster some righteous indignation. By default if not by choice the 
agencies must be the standard bearer. They must not only exercise 
their considerable discretion to reorient policy^^® toward deregulation, 
but they must take the initiative in urging legislative changes where 
needed. As I said earlier, none of the three commissions as presently 
constituted is likely to be persuaded to make or to seek dramatic changes 
in policy, particularly to loosen regulatory controls. In part this is in- 
herent in the attitude of those engaged in regulation; the belief in the 
need for regulation easily becomes an article of faith."* It is a comforta- 
ble and not especially demanding faith, particularly when those regulated 
belong to the same church. As with most such matters the process of 
conversion is difficult and will not be effected without a great deal more 
than some institutional realignments. Still, we can at least attempt to 
expose the believers to a somewhat broader, more diverse congregation 
in the hope of broadening their perspective. On the supposition (or 
hope) that some form of agency consolidation may broaden regulatory 
perspective and stimulate thinking about the role and purpose of regula- 
tion, it seems to me a worthwhile task. 


Though I agree with the Council's proposed consolidation of trans- 
portation agencies, I find it hard to speak kindly of the Council's in- 
vestigation and report overall. It is generous to call it "undistinguished." 

I do not criticize the Council for its failure to give new insights into 
the problems of administrative regulation. That would perhaps be an 
accurate criticism, but it would not be quite fair, for it is not innovative 
thought but careful, objective and detailed empirical investigation that 
should be expected— and that is so vitally needed. ^"^^ Unfortunately, 

129 5ee, e.g., H. Friendly, supra note 24, passim. In this regard, note particularly the 
sweeping discretion which the Supreme Court has permitted the regulatory agencies to 
assume in the direction of expanding their authority. See, e.g., Davis, A New Approach 
to Delegation, 36 U. Chi. L. Rev. 713, 715-19 (1969). 

^oSee JafFe, The Effective Lirmts of the Administrative Process, supra note 10, at 
1105, 1113-19. 

131 Bernstein, The Regulatory Process: A Frameivork for Analysis, 26 L. & Contemp. 
Prob. 329. 335-46 (1961). Bernstein's useful outline for empirical research was unfor- 
tunately developed too late for his own earlier work on the independent commissions, 
see note 7 supra, to benefit from it. On the particular need for investigation into the 
economic effects of regulation, see Caves, Direct Regulation and Market Performance 
in the American Econcfmy, 54 Am. Econ. Rev., May, 1964, at 172. 


it is precisely here that the Ash Council's failure is most obvious. Its 
"findings" are throughout unsupported by substantial evidence, or 
even by illustrations that would convey an observable reality. To 
accept the Council's findings, we must fall back either on its experi- 
ence and expertness or on the intrinsic persuasiveness of its intuition. 
Neither is sufficient to sustain the conclusions reached. If the "findings" 
lack credible support, so also must the recommendations which purport 
to be related to them. Not only do the recommendations suffer from 
the frailty of the findings on which they rest; they suffer as well from 
repeated inconsistency and carelessness of design. 

For all of these faults, however, the most noteworthy failure of 
the Council's investigation lies less in what it did badly than in what 
it did not attempt to do at all. The Council undertook to appraise the 
organization and procedures of regulation and to provide a new "frame- 
work" for regulating. But as the skeleton tells us little of a man, so the 
regulatory framework tells us little of regulation. What is missing is 
an examination of the flesh and blood of the regulatory policies which 
the institutional skeleton is to support. In fairness to the Council it 
must be noted in this respect, that it followed a long tradition of ad- 
ministrative investigations; for the most part it has merely followed the 
prevailing pattern of "administrative law" in general. 

This failure of the Council must be taken as a measure of the failure 
of "administrative law" in general— and of those of us who have con- 
tinued to teach it. In our preoccupation with procedure we have largely 
foresaken substance. Approaching the subject of reform we have re- 
fused to compromise the generality of our learning with the diverse 
detail of substantive regulation. This is a familiar reproach ;^'''^ I repeat 
it here because the Ash Council Report demonstrates how little it has 
been taken to heart. 

I do not intend to demean the importance of procedure and organi- 
zation in administrative regulation, nor the contribution which studies 
of these matters can and do make to the administrative process. I assert 
simply that we have tilled these fields with too little concern for what 
is being grown in them. Perhaps not a small part of our effort goes to 
growing taller weeds. 

In larger terms there is the need for more careful consideration of 
the case for regulation itself in many of these fields. Perhaps a little 
less cultivation is in order. As a general exhortation I put this cau- 

132 5ee, e.g., H. Friendly, supra note 24, at 173; Massel, The Regulatory Process, 
16 L. & CoNTEMP. Prob. 182 passim (1961). 


tiously, not intending to suggest some overarching dogma that we sud- 
denly retrench all administrative regulation or government involvement 
in these areas. However, in a number of areas regulation has gone far 
beyond any plausible application of public interest. Transportation, as 
suggested earlier, is one such area. I do not suggest it is the only one,^^* 
but it is probably the most compelling. If we ignore the role of special 
transport interests in the development of regulation, it is hard to find 
a principle to support our present transport policies. Granting that 
some government investment in, and some regulation of, the trans- 
portation system can be justified outside traditional concerns of indus- 
trial structure, no such justification comes to mind that would vindi- 
cate the scheme of policies we now have.^^^ 

133 Price regulation of natural gas production is one example quite often cited. See 
M. Adelman, The Supply and Price of Natural Gas (1962); P. MacAvoy, Price 
Formation in Natural Gas Fields (1962). 

Another related though distinct example that has gained considerable currency in 
recent years is allocation of radio spectrum rights where it has been proposed to sub- 
stitute a "market system" for administrative decision. See Coase, The Interdepartment 
Radio Advisory Committee, 5 J. Law & Econ. 17 (1962). Since critically reviewing 
these proposals in an earlier article, Robinson, supra note 83, at 1248-65, I have sig- 
nificantly modified my views on certain aspects of the proposed market system. I now 
must admit in limited application (for example within a specified class of users such as 
broadcasters) a pricing mechanism has more merit than I earlier appreciated, though I 
remain skeptical of the wisdom of an unalloyed market system for frequency alloca- 
tions in general. My second thoughts together with continued reservations are set forth 
in an unpublished report, Robinson, supra note 62. 

Other examples of current attacks on administrative regulation cover a broad spec- 
trum. The most relentless and ambitious attacks on regulation now as ever come out of 
Chicago. A leading statement of principle is M, Friedman, Capitalism and Freedom 
(1962). Notable critical essays include, Posner, Natural Monopoly and Its RegttlatioTi, 
21 Stan. L. Rev. 548 (1969) (an ambitious critique of natural monopoly regulation in 
general; the issue is joined in subsequent comments by Comanor, Swidler and Shepherd, 
and a reply by Posner in 22 Stan. L. Rev. 510-46 (1970)); Demsetz, Why Regulate 
Utilities?, 11 J. Law & Econ. 55 (1968) (regulation of utility rates through franchises 
as an alternative to commission regulation); Stigler & Friedland, What Can Regulators 
Regelate?: The Case of Electricity, 5 J. Law & Econ. 1 (1962) (ineffectiveness of 
utility regulation). 

134 In the economists' argot, the "public goods" aspect of transportation (e.g., its 
contribution to national defense and other social benefits accruing to large segments 
of the public) may be invoked to support government investment in, and some measure 
of correlative control of, transport resources. For excellent brief expositions and bibli- 
ography on the theory (more accurately, theories), see W. Baumol, Welfare Eco- 
nomics and the Theory of the State 19-24, 130-34 (1965); Steiner, The Public Sector 
and the Public Interest, in 1 Subcomm. on Economy in Government of the Joint Eco- 
nomics Comm>, 91st CbNG., 1st Sess., supra note 98, at 13. Intimately related to, and in 
some aspects inseparable from, the public good aspects of transportation are the prob- 
lems of external economies and diseconomies associated with some transport services. 
Where such "externalities" ("spillover effects," or "neighborhood effects" as they are 

493-361 O - 73 - 19 


Perhaps the "realist" will scoff that such discourse on general prin- 
ciple is idyllic: since our regulatory schemes have, for the most part, 
evolved from the demands of politically persuasive groups with special 
interests, the problem of reform is how to secure their agreement, or 
overcome their opposition to change. This objection raises an interesting 
question for investigative commissions: how "realistic" should they 
attempt to be? If the purpose of such commissions is to produce im- 
mediate, far-reaching change, then questions of political feasibility must 
predominate; however, I do not see this as the foremost aspiration of 
investigation. The true value of such investigations lies in their ability 
to expose, by careful and objective study, the frailties and failings of 
government policies (as well as the organization and processes by which 
those policies are applied) and to create rational models for reform. The 
political questions of implementing change should be of only secondary 
important to the investigatory; in the course of events there will be 
others in abundant number to deal with them. 

also variously described) exist, even the competitive market does not allocate resources 
optimally— and it may not do so satisfactorily because the full social benefit or cost is not 
reflected in the market price of the resource. The literature on externalities has become 
prodigious (and contentious) in recent years. A good short exposition and bibliography 
can be found in W. Baumol, svpra at 24-36. Government intervention in a variety 
of ways may be invoked to promote the provision of goods and services with significant 
external benefits and to control those with significant external costs. However, external 
effects do not necessarily warrant government intervention; indeed, government 
intervention may well introduce some rather substantial "external" costs of its own. 
See Coase, The Problem of Social Cost, 3 J. Law & Econ. 26-28 (1960). Nowhere 
is this more obvious than in the transport area (as the overconstruction of highways 
and canals abundantly demonstrates). A basic point concerning the public-goods/ex- 
ternalities theories is here raised: while they may justify some government intervention 
in transportation, they scarcely support the present melange of government regulations 
and promotional schemes. To rely on these rationales is really to condemn the existing 
government policies, insofar as they have widened the gap between private and social 
cost by promoting those forms of transportation with the highest social cost while con- 
straining those with the least. 



'Norma7L C. Thomas* 

THE federal regulatory process as conducted by independent com- 
missions has been a subject of interest and concern to scholars and 
governmental reformers for much of this century.^ The recent report 
of the President's Advisory Council on Executive Organization (Ash 
Council) and its accompanying proposals have again raised basic ques- 
tions regarding the nature of government regulation and the efficacy of 
the independent commission as a regulatory instrument.^ The Council 
proposes sweeping changes in the structure of seven independent regu- 
latory agencies,^ which, it urges, should be implemented prior to any 
substantive changes in regulatory statutes. In its letter of transmittal to 
President Nixon the Council states its basic assumption: 

The existing structure, because of its inherent and perhaps unavoid- 
able deficiencies, cannot be expected to accommodate these revised 
[statutory] mandates which may require that regulation reflect the 
pace of change in the regulated industries, the interdependence of ele- 
ments of the economy, and the public interest. A more effective and 
objective regulatory process, better integrated with other processes 
of government, requires a new organizational framework for regu- 

Principally the Council proposes the replacement of the collegial or 
commission form of agency with the single administrator agency. The 
Council claims that this, along with other changes, would correct the 
major defects in commission regulation and improve the quality of 
agency heads and staffs. 

* Professor of Political Science, University of Cincinnati. 

1 For an excellent collection of basic documents and materials on the federal regulatory 
commissions see Legislative Reference Serv., Separation of Powers and the Inde- 
pendent Agencies: Cases and Selected Readings, S. Doc. No. 91-49, 91st Cong., 1st 
Sess. (1970). 

2 The President's Advisory Council on Executive Organization, A New Regulatory 
Framework: Report on Selected Independent Regulatory Agencies (1971) [herein- 
after cited as Ash Counctl Report]. 

3 The Interstate Commerce Commission, the Civil Aeronautics Board, the Securities 
and Exchange Commission, the Federal Power Commission, the Federal Trade Com- 
mission, the Federal Communications Commission, and the Federal Maritime Commission. 

4 Ash Council Report, supra note 2, at iii. 


The purpose of this article is neither to endorse the Ash Council report 
and recommendations nor to offer a defense of the status quo through 
yet another rationale for the commission form of regulatory administra- 
tion. The case against the commission is so well known as to be con- 
sidered classic.^ The principal arguments were summarized, quite fairly, 
by Professor Glenn O. Robinson in his detailed critical analysis of the 
case against commissions: (1) the commissions are not politically respon- 
sible; (2) they are uncoordinated either with each other or with the 
Executive; and (3) they are inefficient in internal organization.^ In ad- 
dition, the critics have claimed that commission appointees and staff 
members have not been of sufficiently high quality to insure the vigorous 
conduct of regulation in behalf of the public interest.'' 

The case for commission regulation was stated in its classic form by 
a task force of the First Hoover Commission. The independent regula- 
tory commission was supported as a "useful and desirable agency" be- 
cause it ( 1 ) provides an effective means of protecting against partisan- 
ship, favoritism, and unfairness; (2) affords the benefits of wise decisions 
arrived at through group deliberation; and (3) furnishes the continuing 
expertise required for "adaptability of regulation with consistency of 
policy." * Most scholarly writing sympathetic or not openly hostile to 
the commi<;<;ions has been con<?iderably more restrained in the tenor and 
scope of its supportive arguments.® 

^ See, e.g., M. Bernstein, Regulating Business by Independent Commission (1955), 
R. CusHMAN, The Independent Regulatory Commissions (1941); E. Redford, Admin- 
istration OF National Economic Control (1952); E. Redford, National Regulatory 
Commissions: Need for a New Look (1959); The President's Committee on Ad- 
ministrative Management, Administrative Management in the Government of the 
United States (1937) [hereinafter cited as Brownlow Committee Report]; Address by 
Philip Elman, "The Regulatory Process: A Personal View", Am. Bar Ass'n Antitrust 
Section, August 10-11, 1970, BNA 1970 Antitrust & Trade Regulation § 475 at D-1; 
Hector, Problems of the CAB and the Independent Regulatory Co?mmssions, 69 Yale 
L.J. 931 (1960); Minow, Suggestions for Improvement of the Ad?mnistrative Process, 
15 Ad. Law Rev. 146 (1963) (letter to President Kennedy). 

6 Robinson, The Making of Administrative Policy: Another Look at Rulemaking and 
Adjudication and AdTninistrative Procedure Reform, 118 U. Pa. L. Rev. 485 (1970). 

T See, e.g., J. Landis, Report on Regulatory Agenues to the President-Elect (1960) 
[hereinafter cited as Landis Report]. 

8 Committee on Independent Regulatory Commissions, Task Force Report on 
Regulatory Commissions, in The Commission on Organization of the Executive 
Branch of the Government Reports to the Congress (App. N) viii (1949) [hereinafter 
cited as Task Force Report]. See also id. at 19-25. 

^Cf. W. Cary, Politics and the Regulatory Agenoes (1967); 1 K. Davis, Admin- 
istrative Law §§ 1.03-1.09 (1958); H. Friendly, The Administrative Agenqes: The 
Need for Better Definition of Standards (1962); J. Landis, The Administrati\'e 


This article will provide a critique of the Ash Council report from 
the perspective of a political scientist whose major interests lie in the 
area of public administration and national politics. Although the author's 
initial biases were and remain favorably disposed toward single-headed 
regulatory agencies lodged within executive departments, after preparing 
this article he is much less convinced that the classic case against the 
independent regulatory commission is sound. 

The basic omission of the Ash Council is its failure to support its 
assumptions and proposals with convincing evidence. This is not to 
say that the Ash Report is erroneous; rather, it lacks systematic em- 
pirical support, and fails to analyze the 200 interviews conducted by the 
Council with "participants in and observers of the regulatory process." ^° 
The Council's report is documented with references to similar efforts 
by earlier reorganization study groups and the writings of scholars, 
practitioners, and lawyers; but these studies, while often carefully rea- 
soned, are largely subjective, impressionistic, and qualitative in their 
approach.^^ As a result, many important assumptions and assertions in 
the report must be accepted a priori. Moreover, the data presented in 
appendices to the report, although providing useful information regard- 
ing the level of agency personnel, funding, workload, and processing 
time, as well as various measures of regulated industry performance, are 
not analyzed in a manner that supports the Report's conclusions or rec- 
ommendations. The Council, presumably, could have made a far more 
convincing and systematic case in suport of its positions. 

Prior Studies and Observations on the Regulatory Process 
Structural reorganization has been oversold as an instrument of gov- 
ernmental and political reform during much of this century. In this 
respect the Ash Council continues in a tradition that includes the Keep 
Commission of 1905-09,^^ the Brownlow Committee of 1937,^^ and the 

Process (1938); Jaffe, The Effective Limits of the Administrative Process: A Reevalua- 
tion, 67 Harv. L. Rev. 1105 (1954); Jaffe, Boole Review, 65 Yale L.J. 1068 (1956). 

10 Ash CouNaL Report, supra note 2, at 125. 

11 See materials cited note 5 supra. 

12 Known officially as The Commission on Department Methods, it operated under 
the chairmanship of Charles H. Keep, Assistant Secretary of the Treasury. The 
Commission was an intra-Executive Branch body that submitted a series of reports 
during its existence. President Theodore Roosevelt was an enthusiastic champion of 
the Commission and regarded it as an effective means of securing greater efficiency in 
administrative management. See Kraines, The President Versus Congress: The Keep 
Commission, 1905-1909: First Comprehensive Presidential Inquiry into Administration^ 
23 W.Pol. Q. 5 (1970). 

13 See Brownlow Committee Report, supra note 5. 


Hoover Commissions of 1949 and 1955.^* Without denying the po- 
tential efficacy of some structural changes, it is essential that a strong 
and convincing case be made for reorganization before it is undertaken. 
This is necessary for two reasons: to avoid generating expectations that 
cannot be met, and to avoid potentially costly and needless disruption 
of existing institutions and processes. Most recommendations for struc- 
tural change fail to make a convincing case because of faulty method- 
ology. Modern social and political sciences have developed theoretical 
frameworks and quantitative analytic techniques that could be brought 
to bear on governmental functions and structures under examination.^^ 
Unfortunately, this form of analysis has not been widely applied to the 
regulatory process. 

Presidential Coffrmissions and Studies 

There were four major governmental studies addressing the problems 
of the independent regulatory commissions prior to the Ash Council. 
Each produced a distinctive analysis and accompanying set of recom- 

The Broivnlow Committee Report 

The basic premise advanced by the Brownlow Committee was the 
time-honored principle of making authority commensurate with re- 
sponsibility. Consequently, its overarching goal was to increase presi- 
dential control and coordination of administrative policy. As one prin- 
cipal means to this end, the Committee suggested the integration of all 
policy-making agencies in the executive departments. The Committee's 
negative view of the independent regulatory commission is best re- 
flected in this well-known description: 

They constitute a headless 'fourth branch' of the Government, a hap- 
hazard deposit of irresponsible agencies and uncoordinated powers. 
They do violence to the basic theory of the American Constitution 

14 The Commission on Organization of the Executive Branch of the Government, 
The Independent Regulatory Commissions (1949) [hereinafter cited as Hoover Com- 
mission Report]; The Commission on Organization of the Executive Branch of the 
Government, Legal Services and Procedure (1955) [hereinafter cited as Second Hoover 
Commission Report]. See also Task Force Report, mpra note 8. 

15 With particular reference to the systematic study of regulation see Massel, The 
Regulatory Process, 26 Law & Contemp. Prob. 181 (1961) and Bernstein, The Regu- 
latory Process: A Framework for Analysis, 26 Law & Contemp. Prob. 329 (1961). 


that there should be three major branches of the Government and only 
three. The Congress has found no effective way of supervising them, 
they cannot be controlled by the President, and they are answerable to 
the courts only in respect to the legality of their activities. ^^ 

To correct this condition, the Committee proposed that independent 
regulatory commissions be abolished and their functions placed in regular 
executive departments. The functions were to be divided into adminis- 
trative and judicial sections. The administrative section would become a 
unit within a department, headed by a single administrator who would 
be a career civil servant reporting through the Secretary to the President. 
The judicial section would be in the department for "housekeeping" 
purposes, but it would act to determine private rights and duties inde- 
pendently of the department and the President. Additionally, the Com- 
mittee's proposal would have effectively placed all regulatory personnel 
under civil service regulations. 

The Brownlow Committee's report and proposals quickly attracted 
attention, much of it critical. Landis felt that the Committee had "some- 
what hysterically" condemned the administrative process." He argued 
that, as a practical matter, administrative agencies are always dependent 
on the other departments of government regardless of organizational 
form. Jaffe criticized the Committee's methodology. Noting that the 
Committee neither held hearings nor took evidence, he charged that the 
Committee's findings of irresponsibility and "threats to impartiality" 
were "value-judgments" and not facts.^* In Jaffe's judgment, it was 
"both unwise and irresponsible" for the Committee to condemn sweep- 
ingly the commissions without conducting the research necessary to 
support its charges.^^ 

In a thoughtful and provocative essay on the nature of the regulatory 
process. Merle Fainsod raised crucial questions and made critical obser- 
vations regarding the Brownlow Committee's recommendations.^'' Argu- 
ing that regulation is a political process that operates in an economic 
and social environment, Fainsod urged that full consideration be given 
to the costs as well as the benefits of the proposed changes. Moreover, 

16 Brownlow Committee Report, supra note 5 at 40. 

17 J. Landis, The Administrative Process 47 (1938). 

18 Jaffe, Invective and Investigation in Administrative Laiv, 52 Harv. L. Rev. 1201, 
1238 (1939). 

19/i. atl239. 

20 Fainsod, Some Reflections on the Nature of the Regulatory Process, in Public 
Policy 297 (C. Friedrich & E. Mason eds. 1940). 


he questioned the claims advanced for the Brownlow Committee's pro- 

Blue-print symmetry, it is worth remembering, does not always bring 
about the harmony of policy which is claimed as one of its primary 
advantages. . . . Would the functions performed by the present com- 
missions be more effectively performed after the proposed split-up? 
No satisfactory general answer can be given.^i 

Fainsod also argued that the Brownlow report and its proposals for 
reform were naive and simplistic in their failure to recognize the com- 
plexity of their goal. 

The problem of transforming the independent commissions into more 
effective regulatory instruments goes far deeper than the problem of 
their relationship to the president. It involves questions of personnel 
and adequate financial support; it extends into the area of relationships 
with Congress and the courts, as well as with the chief executive. It 
involves the even more fundamental question of whether the disposi- 
tion of social and economic forces is such as to enable the regulatory 
agencies to perform their task of adjustment in a creative fashion.22 

While many of the Brownlow Committee's recommendations were 
adopted, the proposals for the independent regulatory commissions were 

The First Hoover Commission 

The First Hoover Commission and its Task Force on Independent 
Regulatory Commissions found the agencies to be useful, desirable, and 
proper governmental mechanisms." They saw no major problems of 
political irresponsibility, industry-mindedness, or lack of policy coord- 
ination, resulting from the independence of the commissions. WTiile 
recognizing the defects of administration by a plural executive, they did 
not recommend a switch to the single administrator form of regulatory 
agency. The principal thrust of both the Task Force and the Commis- 
sion proposals was toward improvement of the internal administration 
and procedures of the commissions. The proposals advanced for achiev- 
ing this end included: (1) strengthening the commission chairmanship; 

21 W. at 315. 
22/i/. at316. 
28 Hoover Commission Report, mpra note 14, at 3; Task Force Report, supra note 8. 


(2) increasing salaries for commission members and staffs; (3) internally 
delegating more of the routine work to staff personnel; and (4) trans- 
ferring "purely executive functions" to operating departments and 
agencies.^^ The Task Force urged that competence in personnel was 
the "most important requirement for effective [staff] performance." ^^ 
It suggested that this could be secured through more emphasis on the 
technical and professional qualifications of presidential appointees and 
less concern for political factors. It also recommended higher salaries 
and protection from arbitrary removal. Criticism of the Hoover Com- 
mission proposals and its Task Force report and recommendations was 
generally restrained.^® The limited scope and slight impact of the pro- 
posals that were adopted^'' indicates that the basic problems remained 
unaffected by the work of the Commission or the Task Force. 

The Second Hoover Covmnssion 

The Second Hoover Commission and its Task Force on Legal Services 
and Procedure approached the phenomenon of the independent regula- 
tory commission with a strong procedural orientation.^^ Evidencing 
little concern for the problems of political irresponsibility and industry- 
mindedness, they sought to reform the administrative process by further 
judicializing it. Reflecting this guiding precept, the Task Force said, 
**The more closely that administrative procedures can be made to con- 
form to judicial procedures, the greater the probability that justice will 
be attained in the administrative process." ^^ The thrust of the numerous 
detailed and technical proposals was toward "formalization of the rule- 

24 Hoover Commission Report, mpra note 14, at 5-13. 

25 Task Force Report, supra note 8, at 33. 

26 See, e.g., Bernstein, supra note 5. Bernstein's strongest comment was that "[t]he 
record of the commissions does not substantiate these sweeping generalizations" claimed 
by the task force. Id. at 295. 

27 The ensuing literature reveals little critical analysis of the Hoover Commission 
proposals or any substantial mention of its effects. For example, Redford in his 1965 
textbook observes: "The First Hoover Commission . . . recommended placing ad- 
ministrative responsibilities in the chairman. This has been done in some measure for 
most of the Commissions, but it has not removed the feeling of the members that they 
share responsibility [for administrative work]." E. Redford, American Government 
AND THE Exonomy 576 (1965) (footnote omitted). 

28 Second Hoover Commission Report, supra note 14; Task Force on Legal Services 
AND Procedure, Report on Legal Services and Procedure prepared for The Commission 
on Organization of the Executive Branch of the Government (1955) [hereinafter 
cited as Task Force Report on Legal Services and Procedure]. 

29 Task Force Report on Legal Services and Procedure, supra note 28, at 138 (em- 
phasis deleted). See generally Redford, supra note 27, at 570-71. 


making process." ^° A fundamental structural proposal called for the 
transfer of the judicial functions of administrative agencies to an ad- 
ministrative court consisting of four sections: tax, trade, labor, and 
immigration. The Task Force report suggested a three stage develop- 
mental sequence for regulation. Initially, as regulatory expertise and ex- 
perience were acquired, governmental functions would be consolidated 
within an agency. Next, a specialized administrative court would be 
established and the judicial functions of the agencies transferred to it. 
Finally, "the new body of law developed by the court of special juris- 
diction . . . become [s] so well integrated in the judicial system that the 
need for the court of specialized jurisdiction disappears, and its functions 
and its judges may be brought within the traditional judicial organiza- 
tion." ^^ While this proposal drew wide approval from lawyers and 
judges,^^ it was attacked by scholars, the Department of Justice, and 
many public officials.^^ Generally, the critics argued that it was overly 
legalistic and too insensitive to political and administrative factors. 

The Landis Report 

The fourth significant governmental study of the independent regula- 
tory commissions preceding the Ash Council Report was the product of 
a single individual, James Landis, former Dean of the Harvard Law 
School and a former member of three federal regulatory commissions. 
At the request of President-elect Kennedy, Landis prepared a lengthy 
report that analyzed the principal problems of the commissions and pro- 
posed solutions for them. Landis looked away from procedural reforms 
and emphasized increased administrative efficiency, greater coordination 
of regulatory and other economic policies, and improved regulatory 
personnel. He keynoted his report with the remark that, "[ajlthough 
the mechanisms we create for administration may be more or less well 

30 Rfdfxjrd, id. at 570. For a critical summary of the Task Force Report and the Com- 
mission's proposals see Headv, The Neiv Reform Moveviertt in Regulatory Administra- 
tio72, 19 Pub. Ad. Rf.v. 89 (1959). A critical review by a lawj-er may be found in Jaffe, 
Basic Issues: An Analysis, 30 N.Y.U.L. Rev. 1273 (1955). 

31 Task Force Report on Legal Services and Procedure, supra note 28, at 242. See 
generally id. at 239-42. 

32 Sec, e.g., Nutting, The Administrative Court, 30 N.Y.U.L. Rev. 1384 (1955). 

33 See Heady, supra note 30; Jaffe, supra note 30; Minor, The Administrative Court: 
Variations on a Theme, 19 Ohio St. L. J. 380 (1958); Nathanson, La-w and the Ficture: 
Administrative Law, 51 Nw. L. Rev. 174 (1956). 


adapted to a particular task, the individuals that operate them singly or 
as a group have the ultimate responsibility of guidance and control." ^* 

Of the many problems considered by Landis, there are two that are 
particularly relevant to the Ash Council Report.^^ With respect to the 
relationship of regulatory agencies to the President, Landis argued that 
"there is not too great a difference between the allegedly 'independent' 
agencies and those technically a part of some Executive Department." ^^ 
Presidential control over the commissions was established through ap- 
pointments of commissioners, annual budget requests, legislative clear- 
ance by the Bureau of the Budget, and designation of commission chair- 
men (except in the case of the ICC) with general administrative pow- 
ers. The only real problem was the need to maintain "Presidential 
concern, with the work of the agencies." ^' This Landis proposed to ac- 
complish by establishing within the Executive Office of the President 
several offices for coordination and development of policy in the areas 
of transportation, communications, and energy, and one office for general 
oversight of the regulatory agencies. 

Of even greater importance, in Landis' view, for improving the ad- 
ministrative process was the matter of obtaining and retaining qualified 
personnel. He stressed that "[g]ood men can make poor laws work- 
able; poor men will wreak havoc with good laws." ^^ The selection of 
regulatory administrators, he maintained, should be based upon com- 
petency rather than political reward. He then asked two critical ques- 
tions: (1) are positions on regulatory commissions "sufficiently attrac- 
tive to draw good men, and (2) how can these men be found?" ^° His 
answer was that "good men are primarily attracted by the challenge in- 
herent in a job." *^ That challenge is a function of the quality of exist- 
ing agency members and staff; the interest, concern, and understanding 
of the President in the regulatory agency and its mission; and the role 
of the agency in the general program of the administration. 

Significantly, Landis did not mention agency structure (plural or 
single executive) or location (independent or departmental) as essen- 
tial elements of the challenge in a regulatory assignment. Secondary 

34 Landis Report, supra note 7, at 3. 

35 See McFarland, Landis'' Report: The Voice of One Crying in the Wilderness, 47 
Va. L.Rev. 373 (1961). 

36 Landis Report, sttpra note 7, at 30. 
37 /^f. at 82. 

38 Id. at 66. 

39 W. 


factors contributing to the attractiveness of positions in regulatory 
agencies included compensation and tenure. Landis argued that a term 
of five to seven years was too short and suggested a longer period on 
the order of fourteen years. There is no question that for Landis, the 
key to securing highly qualified personnel was the President. "Given 
competent appointments to deal with real challenges which can be made 
to exist," he stated, "the recruitment of a competent staff is not diffi- 
cult." *^ Manifestly, only the President is in a position to insure that 
competent appointments are made or that the positions carry real chal- 
lenges. It is unfortunate to observe, however, that neither President 
Kennedy nor his successors have been able to devote sufficient time to 
implement effectively Landis' simple prescription. This condition has 
resulted not from lack of desire or commitment, but from the pressure 
of more urgent demands upon that scarce national resource, presidential 
time. ^2 

Reaction to the Landis report was favorable. In his extensive and 
friendly appraisal, McFarland claimed that Landis had neglected to ask 
the most important question: what is the goal of legislation as spelled 
oiit by statute? The failure of Congress to delegate regulatory authority 
with more precise standards is, according to McFarland, a leading cause 
of deficiencies in the operation of regulatory commissions. Imprecise 
statutes provide neither clear substantive goals nor effective procedural 
tools. The problems generally associated with commission regulation 
are thus almost inescapable. An essential step on the road to reform, 
then, is continuous congressional review and refurbishing of regulatory 

A second limiting omission in the Landis report that McFarland cites 
is its failure to examine departmental regulatory authorities.*^ Landis 
acknowledged the existence of noncommission regulation in the execu- 

41 Id. at 68 (emphasis supplied) . 

42 For a short time after his inauguration, President Kennedy paid close attention to 
the work of the commissions. Landis spent several months as a White House consultant 
on the regulatory commissions, Kennedy sent a message to Congress that dealt with 
many of their problems [107 Cong. Rec. 6771-72 (1961)], and appointments to them 
produced significant policy shifts. See Welborn, Presidents, Regulatory Commissioners 
and Regulatory Policy, 15 J. Pub. L. 3 (1966). Soon, however, crises in foreign policy 
and domestic problems involving civil rights and the management of the economy 
occupied his time and the regulatory process resumed its usual pattern. President 
Johnson, preoccupied with the abrupt transition to office, and then with legislative 
masterminding of the Great Society bills, and finally with Vietnam, never paid close 
attention to regulation. 

43 E.g., Food and Drug Administration, National Highway Safety Bureau. 



five departments, but then he proceeded to ignore it. McFarland's im- 
pHcation is clear: to prepare a report with the goal of improving the 
regulatory process and then to omit the numerous departmental regula- 
tory activities is to miss much of the process. Landis, like others before 
him, concentrated only on the exposed, visible portion of the regulatory 
iceberg. This was a "massive defect for which there is no apparent or 
rational excuse." ^^ 

If nothing else, the absence of critical examination of single-headed 
executive regulation casts doubt on the proposed reforms of the inde- 
pendent commissions. Why are only they to be subject to reform? Is 
it not possible that many of the same defects characterize departmental 
regulatory agencies? An inability to answer these questions on the basis 
of the Landis report or any of its predecessors suggests that the efforts 
to correct the problems of regulation by independent commissions have 
never faced squarely the questions that McFarland raised about the 
Landis report: "Just what is 'the administrative process'? What is it 
designed to achieve? How is such a goal to be reached?" ^^ 

Analyses by Political, Legal, and Econormc Scholars 

The governmental studies of commission regulation have, to a con- 
siderable extent, reflected the interests and biases of those who conducted 
them and prepared the reports. The contribution of academicians to 
these studies has been substantial, but it is by no means uniform. Scholars 
have prepared background studies and final reports, as did Cushman 
and Landis, and have written independent analyses, as did Bernstein and 
Redford. Academic critics of the commissions, as Robinson has sug- 
gested, have tended to fall into three schools: those who emphasize 
problems of administrative procedure, those who focus on the internal 
organization and the external location of the commissions in the broad 
structure of government, and those who stress the substantive economic 
and social policy goals.^^ These three schools— procedural, structural, 
and substantive policy— tend to be dominated by the disciplines of law, 
political science, and economics, respectively. It is true, however, that 
many scholars overlap the schools in their approaches and defy neat 

In the decade since the Landis report, scholarly analysis of the admin- 

44 McFarland, supra note 35 at 420. 

45 /rf. at 421. 

46 Robinson, supra note 6. 


istrative process has been dominated by a concern for procedural fair- 
ness.*'' During recent years proposals for substantial structural change 
in the regulatory commissions were notable by their relative absence 
compared with the period from 1937 to 1961, and those that did appear 
tended to reinforce earlier arguments rather than contribute new evi- 
dence and arguments to the debate.*^ 

The state of scholarly knowledge and understanding of the regulatory 
process was critically reviewed in 1961 by Mark Massel and Marver 
Bernstein/^ Most of the lacunae in the literature which they pointed out 
remain unfilled in 1971, and the research for which they called has yet 
to be conducted. Both Massel and Bernstein decried the emphasis placed 
on independent commissions to the exclusion of departmental regulatory 
functions. They both observed that empirically documented compari- 
sons of the two forms of regulatory agency did not exist (nor have they 
been undertaken since). They were equally critical of the a priori 
reasoning that underlay the assumptions on both sides of the debate over 
the independent commissions. Massel remarked: 

While much of the criticism is merited, there has been no systematic 
evaluation of either the critiques or the suggested cures. Each attack 
is based on assumptions about the nature of the regulatory process, its 
operative characteristics, and its goals. Yet, there is a virtual dearth 
of analysis regarding these assumptions as well as the criteria that are 
employed in the offensive and defensive countermoves.^'' 

And Bernstein observed: 

. . . Chronic reform proposals, such as those relating to administra- 
tive courts, seem to emerge not from fresh analyses of problems and 
issues, but from a priori premises about advantages claimed for courts 

*^ For a representative sample, see the articles cited in the selected bibliography pro- 
vided in the Ash Council Repon. Ash Counol Report, supra note 2, at 191-98. A 
review of the supplements to Davis' Administrative Law Treatise, K. Davis, mpra note 
9 (Supp. 1970), will furnish additional citations to legal studies along with interpretations 
of leading judicial decisions. Two notable exceptions to this general condition can be 
found, however, in the books resulting from Judge Friendly's 1962 Holmes Lectures at 
Harvard, Friendly, supra note 9, and former SEC Chairman Gary's Cook Lectures at 
Michigan in 1966, Cary, supra note 9. 

48 See the suggestions of two former Commission members, Minow, supra note 5 
and Elman, supra note S; and those of a journalist, L. Kohlmeier, The Regulators 

49 .\rticles cited note IS supra. 

50 Massel, supra note 15 at 184. 


and judges over agencies and their heads in the dispensation of justice. 
The assumption of expertise, supposedly an inherent advantage of 
regulation by commission, has not been tested empirically, although a 
running tide of harsh criticism of the staffs and heads of regulatory 
commissions has become commonplace in political life.^^ 

Both scholars concluded that the preoccupation with procedure and form 
had led to a failure to recognize the inherently political character of 
regulation. This, in turn, caused analysts and would-be reformers to 
overlook the goals and the effects of regulation. 

Both Massel and Bernstein called for a reorientation of regulatory 
analysis, the development of new analytical concepts and criteria of 
evaluation, and the employment of empirical research methods. Massel 
felt the principal need was for studies of the "economic and social ef- 
fect [s]" of regulation in terms of its "basic objectives." ^^ He con- 
cluded with this plea: 

Above all, we need further empirical research and broad analysis to 
clarify how regulation works. We require a clearer understanding of 
where the process fits into the complex of our economic, political, and 
social goals. We should have more definitive information of just how 
the participants in the process function. We badly need a broader 
view of the basic issues that deserve attention.^^ 

Bernstein beheved that the use of inadequate conceptual tools such as 
separation of powers, and three dichotomies— rule-making vs. adjudica- 
tion, regulation vs. promotion, and commissions vs. noncommissions— 
had warped the study of regulation.^'* As a corrective he suggested a 
formidable research agenda that included: the development of analytical 
categories based on the goals and operations of regulatory programs; the 
study of regulatory policy formulation and the evaluation of regulatory 
policies; the analysis of the "political context of particular regulatory 
programs;" and the "development and application of techniques of com- 
parative analysis." ^^ The need for empirical studies was critical, ac- 
cording to Bernstein, for without them "we are likely to remain on dead 

51 Bernstein, supra note 15 at 330. 

62 Massel, supra note 15 at 199. -« 

63 Id. at 202. 

54 Bernstein, supra note 15 at 331-35. 
B5 Id. at 336-42. 


center in our understanding of the regulatory process and in our pre- 
scription for reform." ^® 

A few years later, Grundstein enthusiastically heralded the advent 
of a change in administrative law research from a legal to a behavioral 
science orientation,^^ Observing that "[p]rocedurally oriented research 
has dominated research in administrative law," ^^ Grundstein envisioned 
the expansion of microanalytic studies of regulatory decisions as a form 
of organizational behavior and of macroanalytic studies of regulatory 
systems. The advantages of the behavioral approach would include "a 
better methodology for inquiry," "a richer set of conceptual schema," 
and a means of getting "at phenomena that are significant for under- 
standing the formalized aspects of regulatory administration." ^^ Optim- 
ally, Grundstein suggested that it might be possible through computer 
simulation techniques to develop "experimental control of regulatory 
processes." ^° Minimally, it was necessary to shift from a 'process- 
oriented approach to a predominantly outcome or decision-consequences 
approach." ^^ Grundstein expressed great confidence that behavioral 
science could provide the necessary tools and concepts for the achieve- 
ment of research objectives that were quite similar to those of Masse! 
and Bernstein. 

It is distressing to note that several years later these goals are largely 
unrealized. The development of new concepts and research techniques 
and strategies has received attention from only a limited number of 
scholars. Among them, political scientists and economists have made 
some modest contributions, but the situation remains substantially as 
Massel and Bernstein described it ten years ago. Indeed, many of their 
comments can be applied to the Ash Council Report. 

The past decade has produced only a trickle of research on regulation 
by political scientists.^^ In two articles dealing with the NLRB, an 

56/i. at335. 

67 Grundstein, Administrative Law and the Behavioral and Management Sciences, 
17 J. Legal Ed. 121 (1964). Grundstein's thesis that administrative law had much to 
learn from and would be strongly affected by behavioral science was sharply attacked 
in Davis, Behavioral Science and Administrative Law, 17 J. Legal Ed. 137 (1964). 

68 Grundstein, id. at 122. 
B9W. at 135, 136. 

60/rf. at 136. 

61 Id. 

62 A review of the principal journals in political science and public administration and 
of scholarly books revealed only a handful of articles and no major studies, except 
for a continuation of E. S. Redford's work on the CAB. E. Redford, The Regulatory 
Process, With Illustrations From Commercial Aviation (1969). 


agency not covered in the Ash Council report, Scher examined that 
agency's relations with the President and Congress.^^ He concluded that 
the NLRB's independence from presidential control was effectively 
limited through the appointment process. He did not, however, demon- 
strate that NLRB members faithfully implemented the policy prefer- 
ences of the President who appointed them. Scher also found that con- 
gressional control over the policy direction of the agency could be 
exercised through a "reallocation of agency functions." ^^ Reorganiza- 
tion by congressional action could be expected, when "the direct device 
of stimulating the Executive to replace top agency personnel is not 
usable," ^^ The general applicability of Scher's findings is questionable 
since his study was limited to a single agency. 

In a much broader and more systematic study, Welborn substantiated 
Scher's major finding on the efficacy of presidential control over opera- 
tions and policy through appointments.^^ He found that within two 
years of taking office, both Presidents Eisenhower and Kennedy had ap- 
pointed majorities to the five-member commissions— the CAB, FPC, 
FTC, NLRB, and SEC— and sizeable minorities to the FCC, each naming 
three of seven members, and the ICC, to which Eisenhower named five 
and Kennedy four of the eleven members. Welborn also found that gen- 
erally, "the interests to which the two Presidents responded were those 
which one would expect to be prominent in their administration." " A 
qualitative analysis of the operations of the FPC, FCC, FTC, NLRB, and 
SEC during the two initial years of the Eisenhower and Kennedy ad- 
ministrations revealed significant substantive "changes in regulatory 
policy and direction." ®^ This led Welborn to conclude that the com- 
missions were not nearly as independent as generally assumed. Al- 
though not suggesting that the commissions had "been subsumed com- 
pletely in the Executive Branch," he argued that "the concept of inde- 
pendence has lost any viability it once might have had." ^^ He con- 
cluded that for both commissions and departmental regulatory agencies, 

63 Scher, Regulatory Agency Control Through Appointment: The Case of the 
Eisenhovier Administration and the NLRB, 23 J. Pol. 667 (1961); Scher, The Politics 
of Agency Organization, 15 W. Pol. Q. 328 (1962). 

6< Scher, The Politics of Agency Organization, supra note 63 at 344 

66 /i. 

66 Welborn, supra note 42. 

67/rf. atl3. 

68 Id. at 29. 

69 W. 

493-361 O - 73 - IB 


the crucial variables are the degree and techniques of presidential control 
and not the structural characteristics of the institutions. 

Another area of inquiry that attracted the attention of some political 
scientists was the voting behavior of commission members. Two studies 
of this type are of interest. Nagel and Lubin analyzed the voting, by 
members, of the CAB, FCC, FPC, FTC, ICC, NLRB, and SEC for the 
years 1936, 1946, and 1956.''° They hoped to identify the characteristics 
of the commissioners that were associated with liberal votes. They de- 
fined liberal decisions as those favoring "the consumer, shipper, or in- 
vestor (rather than the seller, producer, transporter, or broker), in favor 
of labor (rather than management), in favor of a small business or in- 
creased competition (rather than a larger firm or decreased competi- 
tion) ." '^ They found, not surprisingly, that liberalism in commission 
voting tended to be stronger among Democrats, northerners, and mem- 
bers appointed by Democratic presidents than among Republicans, 
southerners, and members appointed by Republican presidents. While 
their methods were empirical, their findings merely served to confirm 
what was widely accepted as obvious. In a more sophisticated study of 
a single commission, the FCC, Canon used the blocking and scaling 
techniques developed for analyzing judicial behavior.''^ He found that 
party and appointive origin made a difference in FCC voting, "during 
the mid-1960's on questions related to the social philosophy of regula- 
tion" but not on engineering or procedural problems.'^' With respect to 
the analysis of issues that did have an ideological rather than technical or 
procedural character. Canon found: 

[T]he evidence does not support the proposition that the Commissioners 
are ideologically inconsistent in their voting behavior because thev 
respond far more to immediate political pressures or considerations of 
ambition than they do to internalized attitudes about those broad 
issues to which the FCC addresses itself. Most Commissioners showed 
a reasonable degree of voting consistency toward proposals that the 
FCC increase or enforce its regulator)^ commitments.'''* 

70 Nagel & Lubin, Regulatory Cornmissioners and Party Politics, 17 Ad. L. Rev. 39 

71 Id. at 40. 

72 Canon, Voting Behavior on the FCC, 13 Midwest J. Pol. Sci. 587 (1969). For an 
explanation of block and scalogram analysis see G. Schubert, Quantitative Analysis 
OF JuDiaAL Behavior (1959) (chapters III & V). 

73 Canon, supra note 72, at 611. 
74 /i. 


Although limited to a single agency, Canon's findings provide some basis 
for questioning the validity of the widely circulated generalizations about 
the subservience of regulatory commissions to regulated interests; the 
irrationality, mindlessness, and inconsistency of commission decisions; 
and the commissions' blatant neglect of the consumer interest in more 
vigorous regulation. 

Since the Ash Council claimed that the quality of appointive and 
staff personnel would be improved by changing from the commission 
to the single administrator form of regulatory agency, it is also ap- 
propriate to ask if there is support in the literature for this proposition. 
The two major studies in political science and public administration that 
in any way bear upon the point fail to provide much support.'^ Mann, 
in an empirical study of subcabinet appointments, found the process to 
be "haphazard" with no standardized means for "locating, classifying, 
and enticing qualified men" to serve and no system "for preparing po- 
tential candidates adequately for their duties in office." ''^ He also found 
that "[t]he President is relatively inactive in the search for second-level 
executives," though the White House "has attempted to establish [po- 
litical] standards" for appointment, and clientele groups "can, and do, 
exercise an effective veto over objectionable candidates." '^" Although 
Mann did not examine appointments to regulatory commissions, it seems 
safe to assume that the process for their selection is roughly similar. 
Even assuming that the recruitment of commissioners is somewhat more 
influenced by patronage considerations and clientele pressures, it is le- 
gitimate to ask if the appointive process for executive branch positions 
is the norm toward which it is desirable to move. There are substantial 
defects in the recruitment of political executives that have nothing to 
do with the structure of the federal bureaucracy. It is naive to expect 
that the difficulties in the recruitment of independent commissioners can 
be overcome by converting the regulatory agencies to single-headed 
executive units. 

Stanley, Mann, and Doig prepared a biographical profile of over 1 ,000 
federal political executives, approximately twenty per cent of whom 
were regulatory commissioners. While they found an "astonishing" 
degree of similarity in the personal backgrounds of their respondents, 
there were some interesting differences between commission members 

76 D. Mann, The Assistant Secretaries (1965); D. Stanley, D. Mann, J. Doig, 
Men Who Govern ( 1967 ) . 

76 D. Mann, supra note 75, at 264. 

77 Id. at 265-66. 


and the other executives with respect to their occupational backgrounds, 
tenure in office, and later careers. (See Table 1.) Commissioners tended 
to have less previous experience in business (12% vs. 28% for other 
executives), less prior federal administrative service but more experience 
in other levels of government, serve substantially longer terms, and did 
not accept subsequent employment in businesses related to their federal 
service (only 6% did). The data regarding commissioners support the 
image of them as essentially political appointees who serve for a longer 
time than other political executives. They do not, however, give credence 
to the picture of droves of ex-commissioners becoming the minions of 
the regulated interests thereby subverting the public interest. 

Table 1 

A. Differences between Commissioners and Other 
Federal Executives by Occupation 

CoTftmissioners Other Executives 

Previous Occupation 








100 (N 

= 208) 

100 (N = 

= 842) 

Subsequent Occupation 




Federal Government 



Retired, Died, and Other 




100 (N 

= 204) 

100 (N = 

= 798) 

Source: D. Stanley, D. Mann, & J. Doig, note 75, tables 3.1 and G.2. 

B. Differences between Commissioners and Other Federal 
Executives by Prior Government Service and Tenure 


Other Executives 

Prior Government 



85% (N = 335) 

85% (N = 1,223 



57 (N = 205) 

63 (N = 822) 


45 (N = 207) 

37 (N = 842) 

Median Position 

Tenure (in months) 




Source: D. Stanley, D. Mann, & J. Doig, note 75. tables E.7, E.9, E.IO, 
and 4.1. 

The Stanley study also furnishes some interesting evidence concerning 
differences between members of the various regulatory commissions. 
There was a wide variation in the extent to which commissioners had 
been employed or retained prior to their appointments by the industries 
they were to regulate. The proportion of appointees from the regulated 
industries ranged as follows:''^ 

SEC: 34 percent FPC: 12 percent 

ICC: 21 percent NLRB: 8 percent 

CAB: 19 percent FTC: 4 percent 

FCC: 14 percent 

it is interesting that the SEC, generally regarded as most effective in its 
performance, has the largest proportion of industry appointees, while the 
FTC, often criticized as the least effective in perf ormancej^ has the low- 
est percentage of industry appointees. However, it is also true that the 
ICC, with the second highest percentage of industry-related members, 
has received sharp criticism.^" This seems to indicate that there is little 
relationship between the proportion of industry appointees and regu- 
latory commission performance. The explanation of the differences in 
the proportions of industry appointees is no doubt complex, but it ap- 
pears to be related to industry factors and to the jurisdiction of the 
commissions. The SEC deals with the complex realm of corporate 
finance and it is not surprising that many appointees have come from 
that area. The ICC and the CAB regulate aspects of transportation and 
have similar percentages of industry appointees. Likewise, the FCC and 
FPC, which in a broad sense regulate public utility-type industries, drew 
a similar proportion of their members from the concerned groups. The 
FTC and NLRB have such pervasive jurisdictions that it is difficult to 
identify their members with specific regulated interests. 

There is also great variation, between commissions, in median tenure 
ranging from a minimum of 31 months for the CAB to 148 for the 
ICC.^^ In this instance tenure seems unrelated to regulatory jurisdiction 

■^8 D. Stanley, siipra note 75, at 264. 

79 See E. Cox, R. Fellmeth & J. Schclz, "The Nader Report" on the Federal Tradb 
Commission (1969). 

80 See R. Fellmeth, The Interstate Commerce Ommission (1970) 

81 Stanley, supra note 75 at 69. 


and statutory term of office, and moderately related to the age of the 
commissions, the three oldest having the longest median tenure. There 
is possibly a strong relationship between the size of a commission and its 
tenure. The ICC, for example, has eleven members and the longest 
median tenure. This is attenuated, however, by substantial variation 
among the five member commissions, from the CAB's 3 1 months to the 
FTC's 68, and the fact that the seven member FCC stands one month 
above the group median of 56. These variations are manifestly the prod- 
uct of factors other than agency structure. The variations could be re- 
lated to regulatory goals, the characteristics of the regulated industry, 
and the agency's values, traditions, and operating style and procedures. 
While the data are intriguing, there is no way to relate them to objective 
indicators of commission performance. 

If the political science analyses of regulation and the findings of the 
Mann and Stanley studies seem somewhat peripheral to the central con- 
cerns of the Ash Council Report, it should serve to confirm that, with 
these few exceptions, empirically based understanding of the regulatory 
process has not increased greatly during the past decade. The reasons 
for this lack of interest on the part of the critically relevant disciplines 
of political science and public administration do not lie in a lack of 
data, accessibility of the participants for interviews, or sophisticated 
tools of analysis. As Canon observed, there is little "justification for the 
failure of political scientists to investigate regulatory agencies systemati- 
cally." *2 The explanations lie, rather, in the responsiveness of the disci- 
pline to public opinion and the perceived insignificance of the policy 
impact of commission regulation. Interests and fashions in political re- 
search tend to respond to the political climate of the moment. Politics 
has been dominated during the past ten years by questions of war and 
peace; the legislation and programs of the New Frontier and the Great 
Society that were designed to end poverty and injustice; the issues arising 
out of the Viet Nam war— the constitutional powers of the President 
and Congress in military and foreign affairs; the composition and influ- 
ence of the military-industrial complex; and, most recently, the concern 
for the environment. 

Until the advent of the drive for environmental and consumer pro- 
tection, regulation in any form had little attractiveness as a subject for 
scholarly research. Systematic studies of some of the more publicized 
regulatory areas should appear in the next few years. At the moment, 

82 Canon, supra note 72 at 589. 


however, empirical works are limited in number and their contribution 
to understanding of the regulatory process is small. This is not to ignore 
the extensive analyses of certain regulatory agencies and public policy 
problems conducted by Ralph Nader and his associates.*^ These reports, 
while carefully documented, are calls for reform action in the finest 
muckraking tradition. They seek to secure the correction of abuses and 
to elicit positive governmental responses to felt needs. Unfortunately 
they do not attempt to develop analytical categories, identify factors 
that explain regulatory policies, or develop objective indicators for 
evaluating regulatory policy outcomes. Still, they are among the few 
available sources of recent information about regulation. 

This review of recent literature on regulation would not be adequate 
without some recognition of the efforts of economists. Their quantita- 
tive analyses of the effects of regulation on the regulated industries 
strongly suggest that the costs outweigh the benefits. In effect these 
studies question the ''need for regulation as it noiv exists, in comparison 
with totally new techniques or no regulation at all." ^^ Several studies of 
the economic effects of regulation in specific industries give credence to 
this point of view. Stigler and Friedland showed that state public utility 
commissions had little impact on electric rates during the period from 
1912 to 1937.*^ Wilson found that uneven ICC regulation of different 
modes of transportation forces a misallocation of resources by shippers 
and investors and suggested experimenting with various forms of decon- 
trol.*® After analyzing ICC regulation of freight rates. Peck concluded 
that the benefits of deregulation— lower rates, reduction of excess capaci- 
ty in motor and water transport and increased use of railroads— would 
exceed the costs— geographic price discrimination and destructive inter 
and intra-modal competition.*" He urged that direct commission reg- 
ulation of transportation be eliminated and replaced by a competi- 
tive policy similar to that applied to the rest of the economy. Caves' 
study of the efficiency of CAB policies in terms of achieving the agency's 

83 See Cox, supra note 79; J. Esposito, Vanishing Air (1970); Fellmeth, supra note 
80; J. Turner, The Chemical Feast (1970). 

84 The Crisis of the Regulatory Commissions, viii (P. MacAvoy ed. 1970) (his 
emphasis) . 

85 Stigler and Friedland, What Can Regulators Regulate? The Case of Electricity, 
5 J. Law&Econ. 1 (1962). 

86 Wilson, The Regulated Industries: The Effect of Rate Regulation on Resottrce 
Allocation in Transportation, 54 Am. Econ. Rev. No. 3 at 160 (1964). 

87 Peck, Competitive Policy for Tra?Jsportation? in Perspectives on Antitrust Policy 
244 (A. Phillips ed. 1965). 


goals led him to conclude that they were not worth their cost.^^ He 
argued that the air transport industry has a market structure that will 
perform better without regulation and suggested a phased transition to 
a policy of relatively free competition. MacAvoy analyzed the rationale 
for the FPC's regulation of natural gas field prices and found it defec- 
tive.^^ Rather than monopolistic, natural gas markets are generally com- 
petitive and do not require regulation. The consequences of FPC regu- 
lation have been a slowdown in the discovery of new reserves and a 
resulting exclusion of potential customers. 

The conclusion that may be drawn from economic research is that 
regulation is producing undesirable results in certain key industries. 
Assuming the desirability of vigorous regulation, scholars might better 
examine the validity of existing regulatory goals in terms of their ulti- 
mate effects rather than focusing on the structure and procedures of 
existing regulatory agencies. The policy implications of the economic 
analyses are clear: maximally, regulation should be replaced by free 
competition; minimally, controlled experiments with deregulation are 
in order. In either case the approach to reform is radically different 
from that proposed by lawyers, political scientists, and governmental 
studies. To date, however, neither alternative has been accorded serious 
consideration by Congress or presidents of either party. 

The Ash Council Recommendations 

The principal recommendations of the Ash Council and their sup- 
porting rationales can be summarized under four headings: 

1. Transformation from covmnssion to single administrator form of 
agency. The functions of the CAB, ICC, FPC, SEC, and the consumer 
protection functions of the FTC would be performed by agencies 
headed by single administrators. 

The basic concern of the Ash Council Report is with the disadvantages 
of the coUegial form of regulatory agency. A shift to single-headed 
agencies would "assure coordination of regulatory matters with national 
poUcy goals," "improve accountability to the Congress and the execu- 
tive branch," and "increase the probability of superior leadership for 
regulatory activities." ^° The single administrator form would help solve 

88 R. Caves, Air Transport and Its Regulators (1962). 

89 P. MacAvoy, Price Formation in Natural Gas Fields (1962). 

90 Ash Council Report, supra note 2, at 5. 


the problem of attracting and retaining highly qualified personnel and 
would improve managerial effectiveness. 

2. Modified retention of the collegial jorm. The FCC would be re- 
tained but with a reduction in size from seven to five members. Because 
of the sensitivity of broadcast regulation, especially in the area of pro- 
gram content, the Ash Council decided that the advantages of the single 
administrator form had to yield to the "broad-based deliberation" and 
"non-partisan environment" that a commission provides.^^ A reduction 
in size would hopefully attenuate some of the problems of coUegiality 
without surrendering protection from partisan control. 

The antitrust responsibilities of the FTC would be shifted to a new 
Federal Antitrust Board consisting of a chairman and two economic ad- 
ministrators. The Board would be a quasi-commission with its chairman 
having full responsibility for administration and operations, but sharing 
responsibility for policy-making with the economic administrators, of 
whom one would be a member of the Council of Economic Advisers 
and the other director of the Board's economic analysis bureau. Pre- 
sumably the Board would combine the advantages of the single admin- 
istrator and collegial forms. 

3. Realignment of functional responsibilities. The regulatory func- 
tions of the ICC, CAB, and FMC would be combined in a new Trans- 
portation Regulatory Agency. The CAB's promotional activities would 
be moved to the Department of Transportation. The FTC's functions 
would be divided between the new Federal Trade Practices Agency and 
the Antitrust Board. The SEC's regulatory functions under the Public 
Utility Holding Company Act would be transferred to the new Federal 
Power Agency. 

These realignments would be aimed at securing a more rational allo- 
cation of power by coordinating governmental responsibility with 
agency function and industry structure. 

4. LiTWtation of internal agency revieiv of proceedings and transfer 
of judicial review to a new Adrmnistrative Court. In order to prevent 
overjudicialization of agency procedures and to insure "comprehensive 
and anticipatory policymaking," ^^ the time and scope of an agency 
administrator's review of examiner's decisions should be limited. This 
should increase the use of rule-making and informal policy guidelines and 
reduce adjudicatory proceedings. An Administrative Court with appel- 

91 /J. at 117. 
92 Id. at 6. 


late review of decisions from the transportation, power, and securities 
agencies would "reflect an expertise ideally suited to review of adminis- 
trative procedures and concerns." ^^ It would also ease the case load 
in other federal appellate courts. 

A Commentary on the Ash Council Report 

The Ash Council report charges that regulatory commissions fail 
"to respond to current demands" and are unlikely to respond to new 
ones. This, it is claimed, is "principally attributable to coUegial organiza- 
tion, the judicial cast of agency activities, and the misalignment of cer- 
tain functional responsibilities." ^* The report presents no empirical 
evidence in substantiation of these rather sweeping allegations and asser- 
tions of commission failure, though this writer concedes that it has oc- 
curred with some frequency. Furthermore, there are no comparative 
studies, in the Ash Council report or any other analysis, of the degree 
to which single-headed agencies are devoid of such defects. Therefore, 
the relationship between agency form and regulatory success or failure 
must be accepted on faith. 

This is not to deny the assertion made in the Ash Council report; it 
is merely suggested that too much may be claimed for it. As Jaffe re- 
marked in his review of Bernstein's indictment of the independence of 
regulatory commissions, "the critics of the agencies have attributed to 
the factor of agency independence all sorts of political ills and disappoint- 
ments for which it bears no responsibility whatever." ^^ Likewise, to 
lay poorly qualified personnel, uncoordinated policy, political irresponsi- 
bility, excessively judicialized procedures, insensitivity to economic and 
technological change, and inefficient management at the doorstep of 
plural leadership is to overstate the case for a modest structural reform. 

As the above review of the literature demonstrates, preoccupation 
with the collegial form and the phenomenon of independence has led 
many scholars and reformers to ignore or neglect the full ambit of regu- 
lation. There is a paucity of studies of the eff^ects of regulatory policies 
and of regulation as a political process involving a multiplicity of policy 
areas and a variety of agency forms. The necessary empirical analysis of 
regulatory forms in terms of the Ash Council's criteria for reforming the 
commissions— timely policy formulation, eff^ective management, adequate 

93 Id. at 56. 

94 Id. at 20. 

95 JafFe, Book Review, supra note 9 at 1074. 


accountability to Congress and the President, and ability to attract and 
retain able personnel— ^^ has not been conducted by the Council or any- 
one else. 

The intuitive and a priori reasoning presented in support of the case 
for single-headed agencies is especially puzzling in light of the 200 inter- 
views conducted by the Council.^'' It seems appropriate to ask why the 
interview data were not analyzed systematically to demonstrate the re- 
spondents' perceptions of such important phenomena as the relationships 
between the independent variables of independence and agency form 
and the dependent variables of personnel quality, political accountability, 
managerial efficiency, policy coordination, and the effects of regulatory 
policy. Failure to exploit this potentially rich lode of data with the 
analytical methodology of social science is one of the most disappointing 
characteristics of the report. 

Three of the most serious problems that the Council attributes to the 
structure of regulatory commissions are over-utilization of adjudicatory 
procedures, inadequate funding of the commissions, and a lower than 
desirable quality of commission personnel. Each of these asserted rela- 
tionships deserves further attention. 

Is the collegial form the cause of case-by-case policy-making and 
extensive use of adjudication in the conduct of regulation? It may well 
contribute somewhat to that mode of decisional activity, but the record 
suggests that more important determinants are the organized efforts of 
the American Bar Association and its supporters in Congress along with 
the traditional American preference for using adversary proceedings to 
resolve conflicts between the government and private parties.^* The Ash 
Council Report presents no data regarding the frequency of adjudicatory 
proceedings in single-headed agencies, nor does it offer convincing evi- 
dence that a shift to single administrators will result in a sharp decline in 
adversary proceedings or the substitution of rule-making for case-by- 
case policy determination. The single-headed agency form may produce 
a modest tendency in this direction, but it is questionable whether the 

96 Ash Council Report, mpra note 2, at 34. 

97 These interviews constituted a source of hard data which could have been used 
in the conduct of systematic supportive analyses, but the Council chose not to present 
any of that evidence, either in quotations or in tabular form. A skeptic might suggest 
that perhaps the net import of the interviews is not as convincing as the council would 
like us to believe. 

98 Cf. Heady, supra note 30. 


sweeping results envisaged in the Ash Council Report will be accom- 

Is inadequate budgetary support of commission regulation a function 
of the coUegial form and of independence? The assumption that an 
end to independence and the abandonment of plural executives will auto- 
matically increase presidential and congressional support for funding 
has no basis in fact. Fenno's study of the appropriations process reveals 
great variability in funding for operating agencies.^^ He explains this 
differential success in terms of the strategies agencies employ, the popu- 
larity of their programs, and other non-structural factors. It may also 
be true that the level of budgetary support for regulatory agencies is 
directly related to public support for regulation and the agency leaders' 
ability to convert those public attitudes into larger appropriations. 
Changing regulatory structure is unlikely to affect this relationship. How 
well are single-headed departmental regulatory agencies such as the 
FDA and the FAA funded? While the report provides no data on that 
matter, it seems quite likely that there is substantial variability in the 
appropriations of departmental regulatory bodies and the differences 
probably can be explained by the same factors that affect the funding 
of operating agencies. 

Several questions need to be raised with respect to the supposed rela- 
tionship between the structure of regulatory agencies and the quality 
of their personnel. Most fundamental among these concerns the criteria 
for determining the quality of appointed regulatory administrators and 
their staffs. The Ash Council Report and most other scholars and study 
groups leave the observer in a position similar to Justice Stewart's asser- 
tion that, while he cannot precisely define hard core pornography, he 
knows it when he sees it.^°° If the objective is to obtain high quality 
people for public office, how is quality measured or determined? What 
standards are especially relevant for regulatory officials and their staffs? 
How can conflicting standards be reconciled? Even if it is conceded 
that many standards are elusive and defy operationalization, more is re- 
quired than to lecture the President on the need for talented, strong, 
well-qualified, men of administrative excellence. Failure to define the 
components of such qualities is not limited to the Ash Council Report. 
Other reformers who have studied the characteristics of federal execu- 

99 R. Fenno, The Power of the Purse: Appropriations Politics in Congress (1966). 

100 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (concurring opinion). 


tiv€S and regulatory commissioners have also failed to formulate criteria 
for appointment.^"^ 

An attempt to develop criteria that will produce qualified personnel 
quickly leads to confusion and potential conflict, revealing why the 
subject remains so pristine. Some of the more obvious criteria and the 
questions they engender include: 

Age: Youth seems to be increasingly desired, but how much? 

Race: To what extent should blacks be sought? 

Sex: How important a consideration will it become in regulation as 

consumerism and women's liberation increase? 
Politics: Within statutory restrictions, this is an obvious presidential 

prerogative. But, how much should patronage enter into the 

Education: How much is minimally necessary? What professional 

training, other than law, is appropriate? Is the reputation of the 

educational institution of any consequence? 
Experience: What kinds are most desirable? How much is needed? 
Attitudes: What perceptions of regulation and regulatory goals are 

most helpful? To what extent is an explicit consumer or industry' 

orientation desired and permitted? 

Obviously these are not immutable criteria. They will vary widely 
with regulatory areas, external economic and industrial conditions, and 
political factors such as presidential and congressional goals and expec- 
tations. They are not equally susceptible to measurement, nor is there 
likely to be agreement on what is specifically desired. Their relationship 
to agency structure is unknown but by a reasonable estimate it is no 
more than modest; it may even be indirect or tangential. 

Current evaluations of regulatory personnel tend to be based on im- 
precise and conflicting criteria. Education is recognized as essential, but 
there is a tendency to accord higher merit to graduates of Ivy League 
universities and national law schools than of other institutions. Prior 
public service is regarded as relevant experience, but it is often taken 
as evidence of patronage. Relevant private experience is also considered 
useful, but raises the spectre of capture by the regulated interests. 

Beyond the problem of developing reliable criteria for appointment lies 
the difficulty in evaluating the performance of regulatory administrators 
and their staffs. Logic would seem to dictate that the prime considera- 

101 Mann, supra note 75; Stanley, supra note 75; Welborn, supra note 42. 


tion should be the success of the agency in meeting regulatory goals. 
Except on an impressionistic basis, however, this type of analysis has not 
been done. Even with the recent advances made by economists, the 
methodological obstacles are formidable. In addition, regulation has 
been almost universally accepted as necessary and viable, while specific 
regulatory objectives have not been questioned. The possibility that 
some regulatory agencies may be asked to perform exceedingly difficult 
if not impossible tasks has not been taken into consideration. As Gary 
commented, " [sjomehow the public and writers [have] seemed to expect 
too much of regulatory agencies." ^"^ Condemnations of at least some 
regulatory personnel and their agencies may be unfair in light of the 
unreasonable and unrealistic demands that are made of them. Also, some 
heavily castigated agencies may be effectively regulating according to 
statutory goals but their critics overlook the viability of those objectives. 
Caves suggests that the major fault with air transport regulation lies not 
with the CAB as an institution or with its personnel, but with the tradi- 
tional regulatory objectives of maximum incentive to develop new air- 
craft, sustained promotion, and extension of service. ^°^ 

The Ash Council Report does not delve into the complexities involved 
in the recruitment and retention of personnel or in the evaluation of per- 
formance. It speaks confidently, however, of a clear causal relationship 
between agency form and the quality of personnel. This relationship is 
asserted but never demonstrated. A reading of the reports prepared by 
"Nader's Raiders" on the FTC and the ICC,^"^ however, bolsters the 
conclusion that the quality of regulatory personnel, both appointive and 
staff, on those agencies is not high, even when assessed in purely im- 
pressionistic terms of propensity to enhance the public interest. But the 
same conclusion is reached in their report on the FDA.^*'^ Taking the 
manifest consumer protection bias of Nader and his associates into ac- 
count, it seems at least tenable that the problem of personnel quality, 
however imprecise the criteria for measurement, is endemic to the regu- 
latory process. Industry capture of the regulatory agency is by no 
means a phenomenon peculiar to the commission form. Indeed, Lowi 
argues persuasively that it is the dominant feature of agency-public re- 

102 Gary, supra note 9 at 125. 

103 Caves, mpra note 88. 

104 Cox, supra note 79; Fellmeth, supra note 80. 

105 TvRNER, supra note 83. 


lationships in non-regulatory policy areas as well.^''^ It is hardly a con- 
dition that can be corrected by structural changes alone. The most that 
might be hoped for is that a shift to the single administrator form will 
accomplish a marginal reduction in the number of opportunities for 
establishing agency-clientele relationships that are inimical to the public 
interest. The problems of personnel and industry control are not struc- 
tural, they are functional in that they inhere in regulation as a govern- 
mental activity. 

Nevertheless, the Ash Council report states that "the inability ot com- 
missions to perform satisfactorily results more from their organizational 
structure than defects in the recruitment process. Even if the best 
qualified person filled each position, the collegial structure would i?npede 
effective perfor?jmnce.^' ^"^ Assuming that commissions do perform un- 
satisfactorily, the report never shows, beyond the level of a priori asser- 
tions, that other regulatory forms perform more effectively. Nor is 
there any analysis of the recruitment process for other forms of regula- 
tory agencies. Even more sweeping, however, is the final assertion. Not 
only is it unsupported, in spite of the claim to have been "found," it is 
intemperate. If such a claim is valid then why does the Council propose 
to retain the FCC and to create a hybridized Antitrust Board that is 
neither fish nor fowl? Surely if the collegial form is so incapable of ef- 
fective performance that even the "best personnel" cannot overcome it, 
there is no justification for its retention in any agency. Alternatively, 
if structure is so much more important than the quality of personneP"^ 
and the recruitment process, why does the Council argue that single- 
headed agencies will greatly improve personnel quality? ^''^ 

Some of the Ash Council's recommendations for specific regulatory 
agencies bear upon the relationships between form and various problems. 
The argument supporting the proposal to replace the SEC with a single 

106 T. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public 
Authority (1969). 

107 Ash Council Report, n^pra note 2, at 44 (emphasis supplied). 

108 This runs directly contrary to the major argument of the Landis Report, supra 
note 7; see text at notes 38-41, supra. And another former regulator has observed 
that "[t]he structure of the regulatory agencies is of secondary importance. The tradi- 
tions, viewpoints, and philosophies of the administrators are the crucial and controlling 
elements in this process." Loevinger, The Administrative Agency as a Paradigm of 
Government— A Survey of the Administrative Process, 40 Ind. L. J. 287, 312 (1965). 

109 In fairness, it should be noted that the report later mitigates the claim of structural 
■omnipotence when it acknowledges that "[t]here can be no assurance that a single 
administrator may not be short-sighted. . . . The form itself will not automatically 
produce an effective leader." Ash Council Report, supra note 2, at 44. 


administrator ignores the widely held belief that the agency has at- 
tracted competent people since its inception and that it has been the 
most effective and successful of the federal regulatory commissions. 
There is no evidence that the recent increase in delays in SEC proceed- 
ings can be attributed to coUegial decision making. In fact data supplied 
in the Report suggest that the failure of appropriations and personnel 
to keep pace with the growth in workload is the primary cause of the 

Similarly, the FPC's backlog of cases is not demonstrated to be the 
result of its structure.^^^ The claim that a single administrator would 
be more apt to resolve issues through rule-making than the FPC has 
been is more a promise than a fact. Much will depend on the administra- 
tor's background, his perception of regulation, and the agency's statu- 
tory directives. The Council's exaggerated claims of expedited pro- 
cedure overstate the case for a single administrator.^^^ 

The Ash Council makes a good case for the coUegial form in its 
proposal to retain the FCC. The Council distinguishes the FCC from the 
other agencies by the kinds of issues involved in communications, but 
this is a debatable point. Despite the alleged uniqueness of communica- 
tions, the Council cannot avoid attenuating the case that it makes else- 
where against the coUegial form. Furthermore, the case for the Anti- 
trust Board takes back much of the earlier condemnation of the com- 
mission form. The operational effectiveness of the Antitrust Board's 
hybrid structure will depend largely on the personal compatability of 
the chairman and the two economic administrators. It could prove 
highly efficacious or become hopelessly immobilized. 

Conclusion: Regulation as a Political Process 

The basic contention of this article is that untU scholars and reformers 
conceive of regulation as a political process and approach it in that frame 
of reference, they will lack the understanding necessary to develop 
realistic proposals for improvement that have a reasonable prospect of 
adoption and some probability of success. The existing hterature on 
regulation, while substantial in volume, does not provide the requisite 
knowledge. It is heavily subjective in approach, it has not sufficiently 
utilized the systematic methods of social science, and it contains a critical 
lacuna in studies of the single administrator form. 

110 Id. at apps. 3 -A through 5-F. 

111 7i. at apps. 6- A through 6-E. 
112/c/. atllO. 


In developing a conception of regulation as a political process, several 
elements are essential: general goals and expectations, statutory objec- 
tives, organizational structure, procedures, policy control, personnel, 
and the effects of regulatory policies. It is quite possible to reformulate 
these elements, but they have all in various ways attracted the attention 
of those who study the regulatory process, and they seem to encompass 
its essential features. Unfortunately, the full ambit of the process is 
seldom taken into consideration, even in studies of its component ele- 
ments. The predominant tendency has been to consider only a single 
factor such as procedure, or a few manifestly related factors such as 
structure and policy control. It is imperative that the interrelationship 
of all the various elements be kept in mind if understanding is to be 
advanced. The fable of the blind men describing an elephant in a 
variety of ways, each according to his own perception of its single most 
distinguishing characteristic, is worth keeping in mind. 

The purposes of regulation also provide an obvious and crucial starting 
point for most inquiries. Two questions must be asked: what do we 
expect the regulation under study to accomplish; and, how have these 
expectations been expressed in the regulatory statutes? Generally, regu- 
lation is justified on the grounds that abuses of monopoly position by 
firms in non-competitive industries must be prevented, markets must be 
protected against unfair, fraudulent, and deceptive practices, and pub- 
lic safety must be insured. Seldom are questions raised as to whether 
regulation is the proper means to implement these general goals in spe- 
cific situations, nor is the question raised once the initial decision to 
regulate has been made. It is also widely assumed that effective regula- 
tion is necessarily aggressive, vigorous, aiid public-oriented. The con- 
cept of regulation as a negative, combative process is so predominant 
that the possibilities for achieving regulatory goals through positive and 
conciliatory strategies, such as selective incentives, is largely unexplored. 
This suggests that periodic reviews focusing on the need for regulation 
and the appropriateness of current regulatory strategies vis-a-vis alter- 
native strategies would contribute to the development of more realistic 
expectations for the process. 

The implementation of specific regulatory objectives in statutes also 
requires more attention than it now receives. A familiar theory of 
regulatory administration holds that the initial goals are only broadly 
defined and dimly perceived when the legislation is enacted. Conse- 
quently, statutory standards that accompany the delegation of legislative 

493-361 O - 73 - 20 


power use necessarily ambiguous language such as "just and reasonable" 
or "public interest, convenience, and necessity." This ambivalence is 
removed as the agency acquires experience and expertise and a growing 
body of clarifying decisional precedent is formed and supplemented by 
rules and regulations. Empirically, this theory has often proved defective 
for both descriptive and predictive purposes. Jaffe observes that a 
vague, broad delegation may be highly functional at the outset of regu- 
lation, but when the initial objectives are realized ambiguity ceases to 
function in "a sense of mandate," and "[ejxternal forces rush in to fill 
the vacuum." "" Lowi argues that the phenomenon of capture by reg- 
ulated interests is attributable primarily to vague and abstract standards 
of delegation.^ ^^ He dates the ICC's decline, in terms of Bernstein's life- 
cycle theory,"^ from the 1920 grant of the power over minimum rates 
with no accompanying guidelines other than that they be "just and 
reasonable." This led to case-by-case bargaining between the commis- 
sion, the railroads, and motor carriers which placed it "on all sides of its 
own rules and rationalizations." ^^® Friendly regards the clarification 
of general initial standards as imperative for several reasons including 
the maintenance of agency independence and intra-agency policy con- 

If scholars such as JafTe, Lowi, and Friendly are correct, and their 
case is so well stated that it seems imprudent to deny the possibility that 
they may be, then statutory standards deserve more attention as a focus 
for regulatory reform. Moreover, if evaluation of regulation is to be con- 
ducted, at least in part, in terms of achieving regulatory goals, then 
statutory formulation of objectives is an obvious subject for investigation. 

The political, economic, and social forces that contribute to the for- 
mulation of regulatory goals also need to be identified and analyzed. 
Regulation is created in response to demands made on government. The 
interests that originate those demands continue to influence regulatory 
policy formulation and implementation through the articulation of ad- 
ditional demands and by granting or withholding support for the regu- 

113 Jaffe, The Ejfective Limits of the Adtmnistrative Process: A Reevaluation, supra 
note 9 at 1110. 

114 Lowi, supra note 106, at chap. 5. In this same context, Jaffe regards "industry 
orientation" as the product, among other things, of "statutes which grant powers si> 
wide that solutions will be much rr.ore the consequence of group interaction than of 
legislative formulation. . . ." Jaffe, id. at 1113. 

115 Bernstein, supra note 5, at ch. 3. 

116 Lowi, sitpra note 106, at 149. Friendly, supra note 9 at 129. 

117 Friendly, id. at 19 23. 


latory agency. Identification of those interests and a knowledge of their 
objectives and patterns of operation is essential to an understanding of the 
entire regulatory process. 

Regulatory procedures have long been a concern of lawyers. Students 
of administrative procedure have tended to stress its relationship to 
structure and to policy control. Extensively judicialized procedures 
are claimed to be associated with the collegial form. Case-by-case deci- 
sion-making is said to reduce control by political officials and facilitate 
control by clientele groups. But what most research on administrative 
procedure overlooks is the relationship of procedure to the implementa- 
tion of regulatory goals and its impact on the effects of regulatory 
policy. Does adjudication hamper the achievement of regulatory goals? 
What types of procedure are associated with desirable regulatory out- 
comes? Procedure deserves most of the attention it receives, but it needs 
to be examined in the broader context of the full regulatory process. 

The matter of policy control is central to any discussion of regulation. 
It is generally posed as a problem in democratic responsibility involving 
the threat of industry-mindedness. The preferability of public, political- 
ly responsible control by the President and Congress over private, po- 
litically non-responsible control by regulated interests is regarded as 
axiomatic. The conditions that facilitate or impede responsible political 
control over regulatory agencies need to be determined and explored. 
They certainly extend beyond structural factors. Jaffe's statement that 
industry orientation is endemic in any regulatory agency^^* stands in 
sharp contrast to the Ash Council's assertion that it is primarily a defect 
of the commission form. The charge of irresponsibility has been leveled 
at commissions for years, but it has not been ascertained to what degree 
single-headed agencies are susceptible to this defect. The Nader study 
of the FDA suggests that Jaffe is probably right.^^^ The entire problem 
of how patterns of policy control affect the determination of regulatory 
objectives and the effectiveness with which they are implemented has not 
been thoroughly examined. 

Enough has already been said about the effect of regulatory policy on 
regulated industries to indicate its importance in any assessment of regu- 
lation. The evaluation of policy outcomes on the basis of objectives is a 

118 Jaffe, The Effective Limits of the Administrative Process: A Reevaluation, supra 
note 9 at 1113. 

119 See Turner, supra note 83. 


difficult but essential task.^^" The relationship of such intervening fac- 
tors as procedure, structure, personnel, and policy control, to the out- 
comes is also critical in developing proposals for reforming the process. 

The problem of personnel is always present in American administra- 
tive agencies given the greater rewards available in the private sector, 
especially at top levels, and the general preference for private over pub- 
lic enterprise. The most familiar dilemma encountered is the conflict-of- 
interest situation. Most qualified people are likely to come from in- 
dustry or the supportive professions, and many are likely to return to 
them following their governmental service. If their past loyalties and 
future aspirations are oriented toward the private sector, and especially 
to regulated industries, how is the public interest to be maintained and 
advanced? Yet if such persons are excluded, the task of securing com- 
petent men is further complicated. The challenge is to find ways to 
make service in regulatory agencies attractive to a wide range of quali- 
fied people. What are the factors peculiar to regulatory administration 
that make it attractive? How important is the prospect of a lucrative 
subsequent position with one of the regulated industries or a law firm 
that represents them? How much does the visibility of the agency and 
the popularity of its regulatory program matter? (Indications are that 
the current popularity of consumer protection has increased the attrac- 
tiveness of staff positions with the FTC.) Is the clarity of the regulatory 
statute of any significance? Are structural characteristics of the agency 
any consideration? These questions can only be answered through a 
systematic survey of past, present, and prospective regulatory agency 

It should be noted that although the same questions apply to the re- 
cruitment of appointive administrators and professional agency staff 
members, each involves a different recruitment process; therefore, the 
answers may be quite different. The selection of a few score regulatory 
administrators is a politically sensitive operation even though it usually 
does not involve direct or intense presidential participation. The recruit- 
ment of several thousand staff members is a sizeable enterprise, and it is 
almost exclusively a function of the agencies and the Civil Service Com- 
mission. Systematic analysis of the criteria for appointment and the re- 
cruitment process for appointees and agency staff is lacking. If obtaining 
and retaining well qualified personnel is a necessary condition for ef- 
fective regulation, then these matters must be examined. Existing infor- 


mation is either too general, being based on government-wide studies, or 
too subjective to provide satisfactory answers. 

Finally, structure must be acknowledged as an important element in 
the regulatory process, but its major function is to establish the institu- 
tional boundaries within which regulation occurs. It does not warrant 
the central role accorded it in the literature. The relationships between 
structure and the other elements of the process undoubtedly exist, but 
their strength has never been assayed through careful empirical analysis. 
The significance attributed to structure is based upon unsubstantiated 
assertions and impressionistic assumptions. To suggest, as the Ash Coun- 
cil Report does, that the principal defects that afflict the regulatory 
process can be overcome through "a fundamental restructuring" ^^^ is 
to ignore the complex political character of the process and to promise 
results that probably cannot be delivered. At best restructuring by itself 
can offer a marginal promise of improvement, at worst it may generate 
substantial expectations that cannot be met. Failure to meet such ex- 
pectations can lead to consequences— erosion of support for government 
generally, and increased alienation from the political system among im- 
portant segments of the public such as the young, the poor, and the 
blacks— that are potentially far more serious than the conditions for 
which correctives are sought. 

This is not to suggest that structural changes cannot, in appropriate 
circumstances, have highly efficacious results. Rather it is to urge that 
the limitations of reorganization be clearly recognized. In many funda- 
mental respects, governments will perform basic political and social 
functions regardless of structural arrangements.^22 -j^he importance of 
structure for power relations is clear, however. Structure facihtates or 
impedes access to decision-makers, it can be used tactically by some 
groups and individuals to great advantage as they pursue their goals, and 
it can be made to reflect certain societal values at the expense of others.^^s 
But structure cannot determine policies and the values they embody, 
it cannot set fully the terms and conditions of political conflict and 

120 For a general theoretical discussion of the problems of policy evaluation, see Y. 
Dror, Public Policymaking Reexamined (1968). 

121 Ash Counol Report, supra note 2, at 15. 

122 D. Easton, a Framework for Political Analysis (1965). 

123 The reflection of core values in the structure of public bureaucracy is an im- 
portant theme in the work of Herbert Kaufman. See, e.g., Kaufman, Administratwe 
Decentralization and Political Power, 29 Pub. Ad. Rev. 3 (1969); Kaufman, Emerging 
Conflicts in the Doctrines of Public Administration, 50 Am. Pol. Sa. Rev. 1057 (1956). 


choice, and it cannot affect the outcomes in society and the economy 
of pubhc policies once they are promulgated. 

The Ash Council Report also neglects to show that commission regu- 
lation is largely a failure, even though many may intuitively agree that 
this is true. Furthermore, the Council neglected to examine problems 
and factors in the regulatory process that are antecedent and subsequent 
to the agency itself. The report simply assumes that structural reorgani- 
zation can correct the defects of the regulatory process without under- 
standing or analyzing the full dimensions of the process. 

Unfortunately, the Ash Council has not fulfilled its potential. The 
Council should have undertaken the development and presentation of 
more authoritative evidence to support its conclusions. Before the 
Council's conclusions can be accepted, indeed, before valid conclusions 
on the workings of the regulatory process can be supported, adequate 
empirical studies must be conducted by economists and political scient- 
ists. It is of primary importance that these studies be broadly gauged 
and not focused on single elements of the regulatory process. Compara- 
tive studies of established areas such as transportation or food and drugs 
and new areas such as environmental protection or mine safety would 
be extremely useful as would studies of the impact of agency form on 
the entire regulatory process. The Ash Council's conclusions may be 
quite valid, and its recommendations may be potentially efficacious, but 
there is also a strong probability that some of the findings will prove 
to be erroneous and dysfunctional. 


Report in Support of Recommendation 71-5 (As published in: The Journal of 
Legal Studies, University of Chicago Law School, Vol. 1(2), June 1972). 





I. Introduction 


T is generally assumed that "informality" — the disposition of matters with- 
out "the conventionalized reception of evidence and testimony,"^ cross- 
examination, a record and an appeal — facilitates, or even assures, speedier 
and less costly governmental action. Although the sheer mass of agency ad- 
judications clearly requires informality in all but a very limited proportion 
of proceedings,^ countervailing considerations based on constitutional prin- 
ciples, tradition, and notions of fairness have been advanced as arguments 
for increasing the procedural protection against arbitrariness and error. The 
Administrative Procedure Act^ is one major legislative effort to regularize and 
formalize procedures in federal agencies. Similar measures have been adopted 
in many states. And agencies and courts have played an important role in 
formalizing administrative procedures, particularly in areas affecting impor- 
tant economic and social interests, such as welfare, education and housing. 

By what standards should legislatures, agencies or courts decide whether 
to refuse or provide a given procedural protection? What criteria should 
govern the decision, for example, to allow counsel to appear at an agency 

* Associate Professor of Law, Columbia University School of Law. This article is a re- 
vised portion of a report prepared to support a recommendation of the Committee on 
Informal Action of the Administrative Conference of the United States. It represents 
only the views of its author. An article discussing the manner in which discretion is and 
should be controlled at the Immigration and NaturaMzation Service (INS) will appear 
in a forthcoming issue of the Columbia Law Review. The author gratefully acknowledges 
the support of the Administrative Conference, the cooperation of the INS, and the as- 
sistance of members of the Committee on Informal Action, Professors Walter Gellhorn 
and Peter Strauss, and several students including Thomas Fortuin, Margaret A. Kohn, 
and Jamison V. Wilcox. 

1 Walter Gellhorn & Clark Byse, Administrative Law 639 (1960 ed.). 

2 The "lifeblood of the administrative process" consists of "informal" adjudication; 
an overwhelming majority of all federal agency dispositions never reach the formal stage. 
See the excellent discussion in Report of Attorney General's Commission on Administra- 
tive Procedure, Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th 
Cong., 1st Sess. 35 (1941) ; Walter Gellhorn & Clark Byse, supra note 1, at 639-708. 

3Ch. 423, 60 Stat. 237 (1946), revised and codified by Act of Sept. 6, 1966, P.L.89-SS4, 
80 Stat. 378, 381-388, 392-393, 5 U.S.C. §§ SS1-5S9, 701-706 (1970). 


proceeding, to require notice, or to insist on the promulgation of regulations? 
Do informal procedures always assure speedier and less costly adjudications 
than more formal models? What are the effects, if any, of delegating broad 
discretionary power in connection with adjudication? Efforts to obtain facts 
about informal adjudications, and about discretionary action in particular, 
seem potentially useful in answering these questions. The judicial test for 
determining whether formalization is necessary or desirable in a specific 
context has shifted from general formulas, such as "fair hearing" and the 
"right-privilege" distinction, to a more refined "balancing" approach which 
purportedly begins in each case with "a determination of the precise nature 
of the government function involved as well as of the private interest that has 
been affected by governmental action,"'* and has the due process issue turn on 
whether the interests in avoiding the adverse effects of government action 
outweigh "the governmental interest in summary adjudication."^ Factual 
study of specific proceedings can contribute greatly to the effective use of 
this approach by more accurately describing the interests affected and the 
costs involved. It may also provide important guidance for the hitherto 
speculative process of determining what specific formalities are needed or 
desirable in a given context. Even the most venerated formalities, including 
the right to counsel, may do nothing in certain contexts to check abuses — 
may in fact operate as a positive detriment to the individuals affected.^ On 
the other hand, less traditional means of improving the administrative process, 
such as personnel examinations for disqualifying biased adjudicators, may 
prove effective in checking arbitrariness and error in some situations. 

A. The Ckange-of -Status Proceeding 

Until 1952 an alien who entered the United States as a visitor, student or 
other nonimmigrant could become a permanent resident of the United States 
only by obtaining an immigrant visa; and the only persons qualified to issue 
such visas were consular officials, stationed abroad.'^ Many nonimmigrants 
who entered this country after World War I and who decided while they were 
here to become immigrants simply refused to leave the country to seek immi- 

4 Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886, 89S (1961). See William 
W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 
81 Harv. L. Rev. 1439 (1968). 

6 Goldberg v. Kelly, 397 U.S. 254, 263 (1970). 

« See Anthony Piatt & Ruth Friedman, The Limits of Advocacy: Occupational Hazards 
in Juvenile Court, 116 U. Pa. L. Rev. 11S6 (1968); H.J. Elcock, Administrative Justice 
75-76 (1969). 

7 See Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163 [hereinafter cited 
as L & N. Act], at §§ 101(a) (16) & 221, 8 U.S.C. §§ 1101(a) (16) & 1201 (1970). The 
only exceptions to this proposition were for aliens who qualified for suspension of deporta- 
tion or registry proceedings. See 8 U.S.C. §§ 1254 & 1259 (1970). 


grant visas abroad. By 1935 the number of aliens in illegal status in the 
United States, and therefore deportable, was intolerably large. Many had 
been in the United States for a long time and had established family ties. 
Service officials, reluctant to impose the extreme hardship of compelling these 
aliens to go abroad to apply for immigrant visas, sought new approaches to 
the problem. 

In 1935 the Immigration and Naturalization Service established by regu- 
lation the system of preexamination, under which an alien could have INS 
determine his or her admissibility before leaving the United States. If found 
qualified to immigrate, and unless evidence adverse to the alien were sub- 
sequently discovered, the alien was guaranteed readmission to the United 
States, at least to resume his prior status, after a brief and relatively inex- 
pensive visit to an American consular office in Canada. The procedure was 
enormously popular, since it eliminated the anxiety of possible exclusion 
if an immigrant visa was denied, as well as the cost of travel to the alien's 
home country. Between 1935 and 1950 INS adjudicated over 45,000 pre- 
examination cases.^ 

In 1952 Congress sought to ease the situation further. It enacted section 
245 of the Immigration and Nationality Act "so that aliens lawfully in the 
United States in a temporary status . . . [could] have their status adjusted 
to that of permanent resident without the necessity of leaving the United 
States."^ The original version proved to be so restrictive in scope that pre- 
examination, which had been removed from INS regulations when the statute 
was first passed, was restored in 1955.^" The provision has since been sub- 
stantially liberalized, and the statute now imposes essentially the same re- 
quirements as exist for obtaining an immigrant visa, except that relief is pre- 
cluded for crewmen, Western Hemisphere natives and certain illegal entrants. 

To be qualified under the statute for adjustment of status an alien must: 
(1) apply for relief; (2) be admissible for permanent residence; and (3) be 
eligible for the "immediate" issuance of an immigrant visa at the time the 

8 S. Rep. No. 1515, 81st Cong., 2d Sess. 603 (1950). 

^ Id., at 605. The character of the provision is conveyed by a few statistics. Aliens who 
entered this country as visitors for pleasure accounted for 15,483 or 52.9% of all §245 
applications granted nationally during fiscal year 1969. Others who received permission to 
become permanent residents included students (7,493 or 25.6%), the families of students 
(1,348 or 4.6%), parolees (1,121 or 3.8%) and exchange visitors (851 or 2.9%). See 1969 
INS Ann. Rep., Table 6c (1970). The typical applicant obtaining relief recently has been 
in this country between one and four years. A significant number of aliens obtain permanent 
residence, however, after many years of "temporary" residence in the United States. 
During fiscal 1969, for example, 564 aliens who were granted permanent residence had 
entered this country in 1958 or earlier. 

I'^This occurred although preexamination has substantial limitations in comparison to 
the present § 245. See generpUy, Charles Gordon & Harry N. R'^senfie'd. Immigration 
Law and Procedure, § 7.3 (1971) Thereinafter cited as Gordon & Rosenfield]. 


application is approved. Admissibility is defined by implication in section 212 
of the Immigration and Nationality Act,^^ which dehneates grounds of inad- 
missibility. An alien may be deemed inadmissible upon literally dozens of 
grounds, including physical and mental defects, poverty, prior criminal con- 
duct, various forms of immorality, intent to seek employment without ap- 
proval of the Secretary of Labor, stowaway or other improper entry to the 
United States, prior misrepresentations, draft evasion, narcotics involvement, 
and certain poUtical affiliations, particularly with anarchists or communists. 
Waivers of inadmissibility are often available to aliens who fall within one 
or more of these categories. 

The requirement that an immigrant visa be "immediately available" to 
the alien at the time his application is approved raises the most complex 
problems in obtaining relief under, and in administering, the statute. To be 
eligible for admission as a permanent resident the alien must show either that 
he is exempt from any of the numerical limitations on immigration or that 
any applicable numerical limitation is met. The law governing availability of 
immigrant visas at the time of this study was the Act of 1965,^^ which 
abolished in major respects the quota system based on national origin. The 
groups entirely exempted under the Act from any numerical limitation are 
generally "immediate relatives," including children, spouses and parents of 
citizens over the age of 21 years, and "special immigrants," except that 
Western Hemisphere natives, who are "special immigrants," are subject to 
an annual hmitation of 120,000.^^ If a would-be immigrant quaUfies as 
neither immediate relative nor special immigrant, he or she becomes subject 
to the Act's numerical limitations. These are, first, an overall limit for immi- 
gration by all but immediate relatives and special immigrants of 170,000 per 
year. Second, although the 1965 statute (unlike its predecessors) imposes no 
special numerical Hmitations related to the national origins of would-be 
entrants, no Eastern Hemisphere nation may supply more than 20,000 immi- 
grants in any one year. Visa numbers available each year are issued on a 
first come-first served basis, but within a system of seven preferences, which 
in general accord priorities to close relatives and to workers or professionals 
with skills needed in the U. S. economy. ^^ Would-be immigrants who are 

118 U.S.C. § 1182 (1970), entitled "Excludable Aliens." 

12 Act of Oct. 3, 196S, P.L. 89-236, 79 Stat. 911, 8 U.S.C. § 1151 et seq. (1970). 

13 8 U.S.C. § 1151 (1970); see also 8 U.S.C. § 1101(a) (27) (1970). 

14 The system can be summarized as follows: 

First Preference (unmarried, adult sons and daughters of citizens; maximum of 20% 
of the world-wide annual quota, or 34,000 visas allocated). 

Second Preference (spouses or unmarried sons and daughters of permanent residents; 
maximum of 34,000 visas allocated plus unused visas allocated to first preference). 
Third Preference (professionals, and aliens of exceptional ability in the arts or sciences; 
17,000 visas allocated; visas unused by the first two preferences unavailable). 


subject to the numerical limitations normally seek to establish a preference 
which accords them priority over other applicants. 

An alien who meets the statutory prerequisites is qualified for, but not 
entitled to, change-of-status rehef. The statute provides that the Attorney 
General "may, in his discretion," grant relief to statutorily eligible aliens.-^^ 
Therefore, an eligible alien must, in addition, persuade a Service adjudicator, 
acting as the Attorney General's delegate, to exercise discretion in the ap- 
phcant's favor. 

The change-of-status proceeding involves most of the important character- 
istics of informal agency action. First, there are large numbers of adjudica- 
tions under the provision. From a modest 3,702 applications granted in fiscal 
1956, the number of persons securing permanent residence through this 
device grew to 41,528 in fiscal 1970. Second, the procedure estabhshed to 
deal with these applications is relatively simple: most evidence required for 
disposition is obtained from the apphcant himself, on forms, at an interview, 
and through a physical examination; other information is usually secured via 
the mails, and "introduced" into the file without any cross-examination; few, 
if any, of the formal rules of evidence are applied; the adjudicator is usually 
a non-lawyer, and the appUcant frequently is unrepresented by counsel; only 
the barest record is kept; and, until this study, it was the Service's position 
that no "appeal" could be taken from the adjudicator's decision. 

Section 245 is also an ideal vehicle for studying the exercise of discretion 
in the absence of formal procedural protections. Although discretion is in- 
herent in all forms of administration, it seems essential, in formulating an 
agenda for study, to begin with an examination of relatively simple discre- 
tionary functions involving little policy formulation in the broad sense and 
sufficiently formalized to make data accumulation feasible in a modestly 
financed undertaking. The change-of-status adjudication meets these require- 
ments. Most important, it enables a test of some of the major hypotheses 
concerning the exercise of discretion, including the propositions that clearly 
defined standards make for more consistent or more "just" discretionary 

Fourth Preference (married sons and daughters of citizens; 17,000 visas allocated plus all 
unused visas from the three higher preferences). 

Fifth Preference (brothers and sisters of citizens; 40,800 visas allocated plus visas un- 
used by first four preferences). 

Sixth Preference (skilled or unskilled laborers not of a temporary or seasonal nature, and 
in short supply; 17,000 visas allocated; unused visas from prior preferences unavailable). 
Seventh Preference (refugees, known as "conditional entrants"; 6% of the quota al- 
located) . 

Nonpreference (other immigrants; all visas unused by immigrants with preference status 

16 8 U.S.C. § 12SS (1970). 


judgments^* and that broad discretion leads to increased bias and political 

We were also able to collect data about discretion in the processes of 
administrative review and enforcement. A grant of relief at the informal 
level is final, in the absence of grounds for rescission. A denial of relief, 
however, whether on statutory or discretionary grounds or both, may be 
challenged in several ways. The disappointed alien may seek to reopen his 
case at the district office level, apply for reconsideration, or file a new ap- 
plication. Where important questions are presented he may seek to have the 
case certified for decision to the Regional Commissioner. Aliens denied relief 
are usually given about one month to depart voluntarily, and deportation pro- 
ceedings are commenced against those who fail to depart. At the relatively 
formal deportation hearing which usually ensues, an alien may reapply for 
section 245 relief before a Special Inquiry Officer (SIO), who is law trained, 
and who may exercise discretion de novo. An adverse SIO decision is appeal- 
able to the Board of Immigration Appeals (BIA), from which review may 
be sought in the federal courts. In addition to these vehicles for obtaining 
administrative review, an alien may seek, through a variety of techniques, to 
delay or suspend the enforcement process. 

B. Methodology 

The study used as its principal source of empirical data the district office 
located in New York City, the largest and busiest of all INS offices. During 
fiscal 1968, for example, it completed 7,507 section 245 cases, or 20.9 per cent 
of such completions by all INS offices that year.^^ Several students and the 
author prepared reports on approximately 50 interviews of aliens by Immi- 
gration Examiners, the officers who adjudicate section 245 applications, and 
interviewed many INS officers at the district and national offices. For statis- 
tical information we relied on the monthly operations reports prepared by 
the New York office, which provide a fairly comprehensive record of INS 
operations. For nationwide statistics we relied on a similar report prepared 
by the national office on the basis of the monthly district-office reports, and 
on the Annual Reports of INS. 

16 Compare Henry J. Friendly, The Federal Administrative Agencies 54-57 (1962), and 
Kenneth Gulp Davis, Discretionary Justice (1969), with H.W.R. Wade, Anglo-Ameri- 
can Administrative Law: Some Reflections, 81 L.Q. Rev. 357, 371-79 (1965). 

i'^ See, e.g., Emmette S. Redford, The Protection of the Public Interest with Special 
Reference to Administrative Regulation, 48 Amer. Pol. Sci. Rev. 1103 (1954). 

18 When the study began, there seemed no reason to suspect that the New York City 
office was unrepresentative of other INS offices in any significant way. Subsequent study 
indicates that, while some chfferences may exist, it is safe to rely on New York City data 
as supplemented by, and compared with, statistics and other information collected by the 
central office. 


We also examined files of specific cases. We could not practicably study 
files in cases where the examiner granted relief since opinions were seldom 
(if ever) written in these cases and since there was no reliable and convenient 
means for selecting samples. We found, however, that the cases initially 
denied by examiners were sufficient for our purposes. Files in denial cases 
were easily located, and opinions have been written in each such case since 
about July 1967, when Congress passed the Freedom of Information Act. 
These opinions provided useful facts in each case, and, being filed chrono- 
logically, enabled us to count the number of denials in each month and select 
a representative sample. Denials also provided data concerning the processes 
of administrative review, investigation and enforcement. Most aliens initially 
denied relief sought review either before examiners or SIOs. This enabled us 
to study the consistency of decision making under section 245 by comparing 
the results of initial examiner decisions with the results of decisions by exam- 
iners and SIOs during the process of administrative review. 

After learning that denial opinions are filed when ready without regard to 
the day or month of the year, we decided to use the first 15 denials filed for 
each month between September 1967 and May 1968, except that only eight 
cases were available for September 1967.^^ Although this procedure did not 
conform to ideal random-sampling technique, the data collected indicate that 
the sample is representative.^** Furthermore, of the 379 denial opinions filed 
between September 1967 and May 1968, we selected 128 cases, an ample 34 
per cent of the total.^^ 

Our interest in the results of informal adjudication in large part reflects a 
particular interest in the exercise of discretion by administrators. We there- 
fore selected, for the months of October 1967 through July 1968, all cases, 

1^ Denial opinions were written after July 7, 1967, but the Service had inadvertently 
obliterated the file numbers on all opinions written from that date until around September 
IS, 1967. Opinions without file numbers were unusable, since we could not find the files 
in such cases. 

20 The random sample yielded 37 cases in which denials were based solely on discre- 
tion; in 17 or 46% of these cases for which data were available the applicant ultimately 
obtained permanent residence in the United States. This result compares very closely 
with corresponding results for the universe of cases during the same period which were 
based solely upon discretionary grounds; of the total universe of 136 such cases, 65 or 
48% of the cases for which data were available resulted in the applicant's obtaining 
permanent residence in the United States. That the outcome of the purely d'scretionary 
cases in the random sample is so strikingly similar to that of the universe of such cases 
lends support to the representativeness of the random sample as a whole. 

21 We discovered some variation in the absolute number of cases filed each month, 
but the sample selected is so ample that the minor monthly variations did not necessitate 
selection of a consistent proportion of each month's cases. The convenience of selecting 
the first 15 cases, the greater ease with which student assistance could thus be directed, 
the fact that this method left several cases in each month for further use to study discre- 
tion, all combined to make the procedure adopted preferable. 


beyond those in the random sample, in which the adjudicator relied entirely 
or in part on discretion in denying relief. We found 1 13 such cases, of which 
99 were based on discretion alone and 14 on some combination of discre- 
tionary and statutory grounds. 

II. The Informal Adjudication 

During the course of this study we examined several aspects of the informal 
proceeding whereby section 245 applications are adjudicated. This paper 
focuses on those aspects — summary disposition, representation, and bias in 
the decision of applications — that seem most pertinent to an interest in the 
consequences of delegating broad discretionary power. More comprehensive 
discussion is contained in my final report to the Administrative Conference. 

A. Aspects of the Informal Proceeding 

1. Summary disposition. The Service has authorized summary denials 
of meritless applications, to avoid unnecessary interviews and processing.^^ 
We found that with some relatively rare exceptions'^ the power summarily 
to deny was exercised soundly and fairly. The most troubling summary denials 
were those in which a sympathetic review of the appUcant's file would have 

22 The general policy is that interviews should not be conducted unless a "material 
question of fact cannot [otherwise] be resolved" or unless required by statute, regulation 
or operating instruction. INS, Operations Instructions § 103.2 (n) (Nov. 27, 1968) [here- 
inafter cited Operations Instructions]. The I. & N. Act has no provision requiring inter- 
views in § 245 cases, and the Service has authorized summary denial, without interview 
or investigation, of clearly meritless applications. Operations Instructions § 245.2 (a) 
(Oct. 1, 1969) ; INS, Immigrant Inspectors Handbook 1-2, 10-2 (1964) [hereinafter cited 
Immigrant Inspectors Handbook]. Indeed, denials are required "at any stage of the 
proceedings [if] it is determined that an application should be denied . . . notwithstanding 
normal processing has not been completed." Operations Instructions § 24S.S (Oct. 1, 1969) . 

23 Occasionally, relief is denied for lack of prosecution, although the alien failed to 
receive proper notice. Letter from Edith Lowenstein, Esq., N.Y.C., Feb. 2, 1972. These 
denials are readily reopened, however, as are those involving changed facts such as an 
intervening marriage, e.g., case no. 071. 

In case no. 048 the adjudicator denied relief summarily because of the Labor Depart- 
ment's decision to deny a labor certification after finding the apphcant unquahfied as a 
secretary for lack of formal schoohng. The Service has recognized that, though the Labor 
Department's decisions concerning the quahfications of an individual as a member of a 
given profession are entitled to "considerable weight," the final decision on this issue 
(as opposed to the issues whether other qualified workers are available and whether 
the alien's employment would adversely affect wages and working conditions) must be 
made by INS. Immigrant Inspectors Handbook 5-10.2 to 5-11; Matter of Arjani, 12 
L & N. Dec. 649 (1967). No meaningful review of Labor's decision was accorded the 
aUen, although the file indicated that the alien had had an academic education in Europe, 
and was employed as an aide of a major Wall Street brokerage firm. Her employer wrote 
that she could read, write and speak five languages fluently, and would be almost impos- 
sible to replace. After summary denial, the alien, who was unrepresented by counsel, left 
the United States. See also Orcales v. District Director, 431 F.2d 817, 820 (9th Cir. 1970). 


indicated — or even demonstrated — that the apparently ineligible alien was 
entitled to relief on a ground other than the one advanced. In the few cases 
we found which alerted us to this problem the applicants were all repre- 
sented by counsel.^* Immigration Examiners who adjudicate section 245 ap- 
plications^^ occasionally appear unwilling to assist aliens who have retained 
counsel (more on this shortly). 

While INS summarily denies section 245 applications, it provides by 
regulation that no section 245 application may be granted without an inter- 
view,^^ even in the case of aliens serving in the United States armed forces 
abroad .^^ Our data indicate that the requirement serves little purpose in many 
cases.^^ While the interviews we examined provided too insubstantial a basis 

24 In case no. 068, the applicant, a native of Hungary, sought permanent residence in 
the nonpreference category. Visa numbers were unavailable at the time for aliens of that 
type, and the examiner denied the application without interview or further inquiry. The 
file indicated, however, that the applicant was qualified for a visa as an immediate rela- 
tive, and had the examiner checked the file carefully he would have been able to inform 
the applicant that she could claim a higher preference, for which visa numbers were then 
available. He did not do so. Fortunately, the applicant -was represented, and her attorney 
successfully moved to reopen on the basis of an approved visa petition filed by her 
daughter. In case no. 049 the appHcant was denied relief on the ground that he had lost 
his second preference visa by marrying. What the adjudicator failed to develop was the 
fact that the apphcant had married an American citizen and was therefore eUgible for 
immediate relative status. Here, too, reUef was obtained on reconsideration. 

25 Examiners were called Immigrant Inspectors until 1970. Starting pay for GS-11 
Immigration Examiners is $11,905; a GS-IS Special Inquiry Officer starts at $22,885. The 
$10,980 difference in salaries increases by $1,464 after five years, when examiners and 
SlO's are receiving $13,493 and $25,937 respectively. 

26 8 C.F.R. § 245.7 (1971). That this decision represents an administrative judgment 
rather than a dictate of Congress is reflected in its exception for children under the age 
of fourteen years. 

27 See Operations Instructions § 245.1(b) (Oct. 1, 1969). The local consul could easily 
perform this function when required. 

28 Fifty-two interviews were observed during this study. Observations took place on 
different days, and almost every examiner at the New York City ofiice was observed in 
the process. Many of the observed interviews were extremely short. Many served no 
discernible purpose. Of the 52 interviews observed, 14 occupied no more than five minutes, 
not counting the time expended in checking the file and fetching the applicant. This gave 
the adjudicator just enough time to greet the applicant, administer an oath, review the 
answers on the application form, require the appHcant to sign the form after swearing 
the answers were true, tell the applicant not to leave the country while the application 
was pending, and wish the applicant "good day." Another 15 interviews took ten minutes 
or less, allowing the adjudicator to do little more than go through the same ritual at a 
slightly slower pace. That adjudicators were not shirking their duties in these cases is 
reflected by the fact that the NYC district office has authorized interviews so abbreviated 
as to be meaningless. When a backlog of over 4,500 applications under § 245 had developed 
in New York City by June 1969, the District Director ordered an accelerated program of 
interviews. Adjudicators were authorized, in "cases which do not have any derogatory 
information and are prima facie approvable for adjustment . . . ," to limit the interview 
to between three and five minutes, "whereas, these same cases, heretofore, would have 
required ten to fifteen minutes or more." INS, G-23 Analysis, Application Section, at 1 
(June 1969). 



for any far-reaching reform,^ it is worth mentioning that the most persuasive 
argument advanced by Service personnel for retention of mandatory inter- 
views was that discretion could not properly be exercised without personal 
exposure of the adjudicator to the applicant.^'^ The impact of discretion on 
the cost of administration has seldom been considered, let alone tested. We 
may tend to associate discretion with informality — the existence of broad 
discretion implying a relative absence of rules and standards — and infor- 
mality, we usually assume, costs less. In this instance, however, we find the 
Service adhering to a more costly procedure primarily because of its expansive 
view of the meaning of discretion in section 245. 

2. Right to representation. The right to assistance of counsel, "at no 
expense to the Government," is guaranteed by statute in both exclusion and 
deportation proceedings. Regulations extend this right to every INS adjudi- 
cation in which an examination is required,^^ including section 245 cases at 
the informal stage. No special qualifications exist for attorneys to practice 
before the Service; even foreign attorneys may be permitted to appear and be 
heard in individual cases. Private attorneys are generally available, especially 
in larger cities, for aliens able to pay their fees.^^ In New York City, indi- 
gents at deportation proceedings receive some assistance from the Legal Aid 
Society^' and from private groups, but have httle or no access to counsel or 

29 Standards for summary grants do seem possible to formulate. Our study makes 
clear that the adjudicators now almost invariably exercise discretion in the applicant's 
favor when substantial "equities" are present, such as possession by the alien of close 
relatives who are either citizens or permanent residents of the United States, or of ex- 
tremely useful abilities, in short supply. 

30 One experienced SIO wrote in response to an earlier draft of this report that: 

the exercise of discretion is concerned with many of the psychological elements which are 
considered in connection with the punishment to be inflicted upon a conviction of a crime. 
The attitude of the alien towards the law enforcement process, the deliberateness of his 
attempted fraud upon the government of the United States, his remorse for the things he 
has done which he shouldn't have, his cooperation with the law enforcement authorities 
in uncovering other frauds, or persons illegally in the United States, the extent to which 
he is supporting his family either in the United States or elsewhere, his attitude towards 
the principles of government of the country to which he wishes to emigrate and a host 
of other factors, all are relevant to the question of whether a person is entitled as a matter 
of discretion to remain in the United States. 

Comments submitted to the author, July 14, 1971. It is probably true, that, under so broad 
a view of discretionary power, no case could properly be resolved in an applicant's favor 
without a personal interview. 

31 8 C.F.R. § 292.S(b) (1971) ; Immigrant Inspectors Handbook 2-2 (April 29, 1963). 

32 The Association of Immigration and Nationality Lawyers has 11 chapters throughout 
the country, and about 600 members, 200 of whom belong to the New York City chapter. 
Letter from Elmer Fried, Esquire, former President of the Association, July 13, 1971. 

33 The Society has three attorneys working full time on immigration matters in New 
York City, handling approximately 2,000 cases each year. They refer no cases to volunteer 


other representatives on any institutionalized basis to assist them at informal 

An early survey indicated that only about 20 per cent of all aliens were 
represented in deportation hearings.^^ Even though the courts have consis- 
tently upheld INS' refusal to supply counsel to indigents,^^ the incidence of 
representation at formal proceedings is now estimated to be roughly 30-40 per 
cent by an experienced SIO.^® Aliens are apparently represented by counsel 
even at the informal level in more than 20 per cent of all change-of-status 
cases. Of the 50 interviews we observed, counsel was either present, or re- 
tained but not present, in 22; in the other 28 cases, we lacked information 
as to whether counsel had been retained. 

Whether the absence of representation prejudices aliens who apply under 
section 245 is a many-faceted question. Although we found evidence of 
prejudice from lack of representation with respect to some aspects of the 
process, discussed below, no evidence of such prejudice was found at the 
informal hearing itself. To be sure, the decision to study denials and their 
subsequent history, rather than both denials and grants, precluded the most 
meaningful type of statistical evaluation of any correlation of rates of denial 
with the absence of counsel. 

Examiners occasionally questioned unrepresented aliens closely or even 
unfairly at the interviews we observed, but they did so at least as frequently 
when the alien was represented. Indeed, an applicant without counsel who 
admitted an innocent violation of regulations appeared to be treated more 
sympathetically than one who was represented and unconvincingly denied 
wrongdoing. Several examiners indicated their belief that most aliens do not 
need counsel in section 245 cases and that aliens who hire counsel usually 
have something to hide. Moreover, while the immigration bar includes dis- 
tinguished and honest practitioners, adjudicators are generally suspicious of 
immigration practitioners and other representatives, an attitude lent credence 
by the Service's special investigative program for "Suspect Third Parties," 
and by several successful criminal prosecutions.^'^ Suspicion is especially 
strong when a representative "coaches" his or her alien client, as frequently 

The impression from observation is supported by other facts, including 
the absence of a correlation between the presence of representation and 

private attorneys. The Service provides space at its office for these attorneys. Interviews 
with Messrs. Levin and Biervliet, Esquires, NYC, June 23, 1970. 

3* William C. Van Vleck, The Administrative Control of .-Miens 99 (1932). 

35£.g., Dun-Marin v. District Director, 426 F.2d 894 (9th Cir. 1970). 

36 Interview with Ira Fieldsteel, Esq., NYC, July 16, 1971. Mr. Fieldsteel estimated 
that Legal Aid handled about 10% of the cases in which attorneys appeared. 

37 See 1970 INS Ann. Rep. 20-21 (1971). 

493-361 O - 73 - 21 


success on the merits of applications. Our observations of 50 interviews of 
aliens in the process of applying for section 245 relief indicated that at least 
44 per cent were represented. Our random sample of denials, drawn from 
cases decided between one and two years before the interviews observed, indi- 
cated that about 60 per cent of the aliens denied relief were represented, three 
per cent by nonlawyers. Even assuming that the 44 per cent representation 
rate at interviews is something of an understatement,^^ these facts seem to 
indicate that aliens with representation are denied relief in a higher propor- 
tion of cases than unrepresented aliens. Of course, the higher proportion of 
grants to unrepresented aliens may result from a tendency among aliens with 
less meritorious cases, which are therefore more hkely to be denied, to obtain 
counsel more often. 

The evidence collected in this study indicates, as will appear, that denials 
based on statutory grounds are less vulnerable in the process of administra- 
tive review than those based on discretionary grounds. One possible reason 
for the relative lack of stability in discretionary grounds is that they are less 
easily supported than decisions based on statutory grounds, so if ahens were 
prejudiced by the lack of representation at the informal stage, we might ex- 
pect that such prejudice would manifest itself in a tendency among adjudi- 
cators to rely on discretionary grounds more frequently when aliens are im- 
represented than when they are represented. The evidence fails to support 
this hypothesis. Table 1 shows that aliens were represented at some stage in 
almost all denials based on discretionary grounds and that a representative is 
more likely to be present in cases denied on the basis of discretion than in 
cases decided on statutory grounds. 

Incidence of Representation Among Aliens Denied Relief by Basis for Denial 

Discretionary Statutory 

Deniak Deniak 

Represented 84% 71% 

Unrepresented 16 29 

(Base 121 cases) (Base 68 cases) 

If the hj^othesis of prejudice were true, one might reasonably expect un- 
represented aliens more frequently to make statements to adjudicators at 
interviews, and for such statements more frequently to prejudice unrepre- 

38 It was unclear in many cases whether the alien being interviewed was represented 
although unaccompanied by an attorney. Furthermore, no data were available on the 
incidence of representation among aliens denied relief without interviews. The 44% 
figure, however, may be an overstatement. Mr. William H. Cook, Supervisory Immigrant 
Examiner, Travel Control, estimated that about 30% of all applicants are represented at 


sented aliens. In fact, unrepresented aliens denied relief were far less likely 
to have made statements to examiners than represented aliens denied relief. 
Of the represented aliens in the random sample, 34 per cent made statements, 
compared to only 18 per cent of those unrepresented. Of the unrepresented 
aliens who did make statements, the file examiner judged that 80 per cent 
(four out of five) in the random sample were "prejudiced" by the statements 
made. This is somewhat higher than the corresponding figure for represented 
aliens who made statements judged prejudicial, 60 per cent (18 out of 26), 
but the former figure is based on far fewer cases. Furthermore, of all the 
cases involving represented aliens, the statements in only 12 per cent were 
actually judged nonprejudicial, prejudice in the other 19 per cent of the cases 
being too difficult or impossible for the file examiner to judge. 

3. Multiple Functions. Adjudicators routinely send for and analyze in- 
formation about applicants from a variety of sources,^^ including consulates,**" 
the FBI,^^ and the CIA.^- Where necessary, they make special requests for 
investigations by INS personnel,^^ or by other agencies and law enforcement 
officers. They then marshal all the available information concerning an alien 
applicant, and utilize it to question the alien more intelligently and effectively. 
An examiner, therefore, may act as investigator, "prosecutor" and judge in 

3^ Thus, adjudicators are required, as to each applicant over 14 years old, to check a 
Lookout Book in which the names of all persons "wanted" by the Service are listed. 
Immigrant Inspectors Handbook 1-4. The Service also puts out an Intelligence Report 
which describes prevalent fraud practices and persons whom the Service is seeking. Both 
sources, on occasion, help adjudicators identify wanted aliens. E.g., case no. 256. 

^0 The information is requested on INS Form G-32SA, which is prepared for each 
applicant. This form contains pages requesting the United States Consul involved, the 
FBI, and the CIA to supply information about the applicant. Immigrant Inspectors Hand- 
book 10-4-1. The FBI and CIA are given 30 days to respond or to request further time; 
the consul is given 45 days. If the agency has failed to respond within the time hmit, the 
adjudicator may proceed to dispose of the apphcation. 

Of the responses thus obtained, reports from consular offices seem the most consistently 
useful. They usually contain brief summaries, sometimes with direct quotations, of what 
the applicant said when he applied for a nonimmigrant visa. Consular records were 
found in 12% of the random sample denials and in 17% of the denials based exclusively on 
discretion; in several cases adjudicators expressly relied on the reports in denying applica- 

^1 FBI reports appeared in 6% of the random sample cases, but the information supplied 
seemed generally of little use, and was seldom expressly relied on by adjudicators. 

^2 In only one random sample case did a CIA report appear. It was classified Con- 
fidential and conveyed information about a foreign student who was possibly a Com- 
munist, and who had been arrested while participating in an antiwar demonstration. 
Similar information was received in this case from the consul involved, and developed by 
INS itself. Case no. 230. In addition, the CIA informed the Service, in one of the cases 
studied as part of the discretionary universe, in a "Secret" report, that a "usually" reUable 
source claimed that the applicant had committed crimes in a foreign country. Case no. 004. 

43 At least one report was prepared by the Investigations Section in 18% of t!ie 
random sample denials. 


the same case. The danger Americans traditionally associate with such a 
merger of functions may be aggravated by the fact that much of the material 
that finds its way into the files of section 245 applicants is never introduced 
into the "record" of such cases, either because it is worthless or confidential.*^ 
Although INS prohibits examiners from relying on such information, the 
merger of functions creates the possibility that examiner decisions will be 
influenced by the inadmissible material. 

The same problem was earUer faced by the Service in connection with the 
multiple functions of deportation adjudicators, and the 1952 Act required a 
separation of functions at least to the extent that Special Inquiry Officers 
may not hold hearings in cases they have participated in investigating or 
prosecuting.*^ The statute allows SIOs to conduct entire hearings, including 
cross-examination of witnesses, but "the current practice generally is to have 
the special inquiry officer pursue the inquiry alone only if deportability is 
conceded and there is no application for discretionary relief."*^ Where a 
contest is posed, an INS Trial Attorney is designated as prosecutor. The 
issue is whether similar restrictions ought to be imposed on the functions 
of examiners. 

It seems likely, on the basis of our interviews and extensive file examina- 
tions, that the multiple functions of examiners do affect the outcome of some 
section 245 adjudications. Anonymous tips appear to pose little threat to 
aliens; the few adjudicators who discussed this issue seemed uniformly skep- 
tical of such data, except as possible leads. But examiners also receive a 
variety of letters, phone calls and other communications from individuals who 
claim to know the applicant, usually containing adverse information, and 
requesting that the communicant's identity be concealed.*'' The most com- 
mon type of unclassified information comprises letters from the alien's spouse 
accusing the ahen of adultery and urging the Service to deny his or her ap- 
pUcation for permanent residence. Finally, some form of classified informa- 
tion appeared in about eight per cent of the random sample of denials and in 
several of the other cases studied. In some instances classified reports con- 

** Any party to a proceeding, or his authorized representative, may examine, upon 
request, the "record of proceeding" in the case. 8 C.F.R. § 103.2(b)(2) (1971) ; Immigrant 
Inspectors Handbook 4-7. The nonpublic Inspector's Handbook requires inclusion in the 
record of proceeding (on the left side of each file) of any evidence considered in arriving at 
the initial decision . . . ," Immigrant Inspectors Handbook 4-2, but several provisions 
arguably undercut this requirement, id., at 4-3. 

45 I. & N. Act, § 242(b), 8 U.S.C. § 1252(b) (1970). 

4« Gordon & Rosenfield § S.7b, at S-49. 

47 Examiners almost invariably honor these requests for anonymity, thereby hiding 
from the aUen information which is often rebuttable. See the description in Will Maslow, 
Recasting Our Deportation Law: Proposals for Reform, 56 Colum. L. Rev. 309, 356 


tained highly probative evidence but these cases invariably included usable, 
documentary information or other evidence which was unclassified. Most 
classified information examined was less probative and unusable as evidence. 

Some adjudicators fervently and sincerely deny relying on nonrecord in- 
formation in deciding cases, but other adjudicators and supervisors indicated 
that nonrecord, confidential information was in fact used in denying applica- 
tions. One adjudicator frankly admitted to relying on derogatory, confidential 
information. Another examiner laughed when asked whether such information 
was used: "Are you for real? Of course I rely on it." When confidential 
information is present, the adjudicator said, "we search" for grounds on which 
to deny the application — "I deny on everything but the kitchen sink." 

The files we studied lend further support to the view that nonrecord in- 
formation, particularly if classified, is improperly relied on by adjudicators. 
In two cases where overwhelmingly probative, usable evidence was supplied 
along with the classified reports, the adjudicators initially relied on other, 
unrelated discretionary grounds to deny relief.^^ Only when the aliens in- 
volved in these cases renewed their applications before SIOs was evidence 
of Communist Party membership and prior crimes revealed. The same pattern 
is indicated where the nonrecord information is far less probative, as for 
example where classified evidence in the alien applicant's file concerning par- 
ticipation in a demonstration against a military regime was not mentioned by 
the adjudicator in denying relief on the discretionary ground of adultery.'*^ 

Other factors indicating that nonrecord information affects decisions at 
the informal level are the emphasis placed by the Service on subversive 
investigations and the stated policy of seeking grounds on which to deport 
aliens involved in antiwar demonstrations. In every annual report since the 
1950s, the Service has emphasized the importance it attributes to its anti- 
subversive operations.^^ The Service is required to coordinate its work with 
agencies such as the FBI and CIA,^^ but it claims to do so in order 
"promptly" to furnish information it develops "to the appropriate agency 
or agencies,"^- rather than vice versa. Thus the Service is engaged in a 
"continuing effort ... to identify and compile evidence concerning various 
groups or organizations to determine whether their characterization as sub- 
versive organizations was warranted and, if so, whether involvement in those 
organizations by the foreign born justified Service action looking toward their 
exclusion or deportation from the United States or . . . [their denaturaliza- 

48 Case nos. 020, 051. 

49 Case no. 288 (pending at time of survey). 

50 E.g., 1956 INS Ann. Rep. 11 (1957). 

51 1. & N. Act § 105, 8 U.S.C. § 1105 (1970). 
52 1969 INS Ann. Rep. 19 (1970). 


tion]."^ The scope of antisubversive activity, moreover, goes well beyond 
that which is or may be proscribed by statute. The Service reported that 
during fiscal 1967 "investigations were conducted to identify certain aUens 
involved in demonstrations protesting the national effort in Vietnam and 
elsewhere, and to determine their amenability to Service proceedings."^* In 
fiscal 1968 the Service also managed to find time to investigate ahens "in- 
volved in student disorders."^^ In two of the cases we examined, receipt by 
the Service of classified reports from other agencies set off full-scale INS 
investigations, one of which involved no fewer than 11 separate reports (based 
on many more interviews) by INS investigators.^^ 

Finally, the Service's commitment to protecting the integrity of the con- 
sular process may be a factor engendering prejudicial nonrecord information. 
Adjudicators may well search for grounds on which to deny aliens rehef be- 
cause a consulate officer states that he either feels or has heard that the alien 
lied to obtain a visa to the United States. Thus, in case no. 172 an unclassified 
report was received by INS from a consulate stating that it had received 
information that the alien had bragged to his friends that he could hoodwink 
the government. Relief was denied at the informal level on the basis of dis- 
cretion, without any mention of the consul's report. The SIO granted rehef 
on the same "record," which of course did not include the consul's report of a 
hearsay statement by an unidentified informant of unascertained reliabihty. 

Despite the evidence that examiners are affected by their multiple func- 
tions, the proper solution to the problem of their unauthorized reliance on 
nonrecord information, whether conscious or unconscious, is no simple matter. 
UnUke exclusion and deportation, the alien denied rehef is entitled to a formal 
hearing on the issue of deportability, as well as to a de novo consideration of 
the merits of his section 245 apphcation, before an SIO who, in the absence of 
special authorization, sees only record material. Separation of functions at 
the informal level would require an additional, qualified person to perform 
investigation, an expense that would be very substantial with respect to 
section 245 applications alone (of which there are some 45,000 each year), 
and staggering if applied to other, analogous adjudications. 

The change-of-status adjudication therefore seems an appropriate occasion 
for resisting the temptation to judiciaUze the agency process. The danger 

63 Ibid. Apparently, even examiners sometimes participate in deciding whether particular 
groups are subversive. One adjudicator told of how several officers met and discussed 
whether they ought to regard "SDS" (Students for a Democratic Society) as subversive. 
He said they met informally, discussed and voted on the matter and split evenly. Pre- 
sumably, each adjudicator was thereafter left free to implement his or her own policy, 
based on information supplied by time-consuming investigations. 

54 1967 INS Ann. Rep. 16 (1968). 

55 1968 INS Ann. Rep. 16 (1969). See also 1969 INS Ann. Rep. 19 (1970). 
5BCase nos. 230, 271. 


posed by the multiple functions of examiners is real, but arises in far fewer 
than ten per cent of all cases; classified information is found in less than one 
per cent. And the opportunity for review by an SIO, who does not engage in 
investigation, adds a significant check to examiner decisions. But INS should 
take steps to correct the erroneous and unfair impressions adjudicators may 
be receiving from its official statements implying that demonstrators and 
other dissidents are "subversives." 

B. Consistency of Decisions 

Section 245 provides an excellent vehicle to test the hypothesis that broad 
discretion is correlated with inconsistency and with such possible causes of 
inconsistency as political intervention. In adjudicating section 245 applica- 
tions examiners decide, first, whether the applicant is eligible for relief, in that 
he has met the statutory prerequisites for relief, including admissibility, 
immediate availability of a visa, etc. These are referred to in this study as 
"statutory grounds." In addition, examiners must determine whether to exer- 
cise "discretion" in the aUen's favor. In doing so, the examiner decides 
whether the applicant's case presents a basis for denial on one of several 
"discretionary grounds." Since the statutory grounds invoked in the cases we 
examined are far better defined than the discretionary grounds relied on, we 
have a basis for attempting to determine whether the lack of standards causes 
greater inconsistency. We have in fact found that inconsistency and political 
intervention occurred with greater frequency in connection with the relatively 
ill-defined discretionary grounds than with the relatively well-defined statu- 
tory grounds. 

1. Relative Definition of Grounds of Decision 

When analyzed by grounds of decision, denials of applications for section 
245 relief fall into three categories: (1) those based exclusively on statutory 
grounds; (2) those based exclusively on discretionary grounds ; and (3) those 
based on both types of grounds. About 65 per cent of all denials examined 
in our random sample were based exclusively on statutory grounds, 28 per 
cent exclusively on discretionary grounds, and seven per cent on both types 
of grounds. It is accurate to say, therefore, that statutory grounds were in- 
voked in 72 per cent of the denials studied, and discretion was relied on, 
whether necessarily or unnecessarily, in 25 per cent of all the cases. 

a. Statutory grounds. Section 245 applications may be denied on literally 
dozens of statutory grounds, which fall into four general categories. First, to 
be eligible, an alien must file an appUcation. This provision has been inter- 
preted to require that any filed application be pressed, and not abandoned. 
Second, certain specific groups of aliens, such as crewmen and Western 


Hemisphere natives, are expressly made ineligible under section 245. Third, 
the alien must be admissible, a requirement that incorporates a variety of 
individual grounds, involving such things as physical or mental defects, 
certain pohtical associations, certain prior crimes, a vahd visa petition, 
and a labor certification where necessary. Fourth, a visa must be "immedi- 
ately available" to the applicant; this ground reflects the requirement that 
even admissible aliens must be eligible for a visa number under the system 
of preferences established by the Act. 
The proportion in which each category is utilized is illustrated in Table 2. 

Statutory Grounds Invoked To Deny Section 245 Relief* 

Application Deemed 

1. Failed to appear 

for interview. 

2. Left U.S. whUe 


Special Categories 
of Ineligibility 

1. Alien crewmen 

2. Entry without 


3. Western Hemisphere 


Inadmissible Under 
Section 212 

1. Prior criminal 


2. Subversive 

3. Exchange visitor 

4. No valid visa 

petition or 
labor certificate 

Visa Number Unavailable 














10 20 
: 72 Cases) 

30 40 

so" loo- 

• Percentages sum to more than 100 per cent due to reliance on multiple grounds. 

As can readily be seen, visa unavailability is the category most frequently 
invoked — in 49 per cent of the random sample denials based in whole or in 
part on a statutory ground. In all of these cases, the alien's preference cate- 


gory was oversubscribed. Specific grounds of ineligibility were invoked in 13 
per cent of the statutory denials, the most frequent of which was entry with- 
out inspection (nine per cent). Applications were found abandoned in 14 
per cent of the statutory cases, mostly because of failure to appear for 
scheduled interviews. A variety of grounds of inadmissibility were invoked in 
27 per cent of the cases. No valid visa petition or labor certification had been 
)btained in 19 per cent of the cases; since these two grounds were present 
together in all cases in which they were invoked, they are treated as one. 
Other grounds of inadmissibility were relied on in only nine per cent of the 
cases. Of the aliens deemed inadmissible four were found to fall within one of 
the "subversive" categories; one involved a prior criminal violation; and 
three were exchange visitors. None of the other grounds of inadmissibility, 
such as public charge, illiteracy, prostitution, or physical or mental defect, 
was invoked in the random sample denials.^^ 

Application deemed abandoned. A small proportion of all applications is 
denied either because the aUen failed to appear at an interview or departed 
the United States during the pendency of the application. Under the former 
ground, adjudicators may deny appUcations on the basis of one or more 
failures to appear, after due notice, but they are free to disregard such con- 
duct. This authority seems more limited when an applicant departs pending 
final adjudication, because of the regulation's explicit provision that an ap- 
plicant's departure "shall be deemed an abandonment of his application con- 
stituting grounds for denial. . . ."^^ But broad discretion is conferred through 
the exceptions to this rule for persons who "had previously been granted per- 
mission by the Service for such absence . . . ," and for those whose departure 
the adjudicator concludes "was unintended or innocent and casual," and 
whose "absence was brief."^* This particular ground is therefore discretionary 
in nature. 

Specific exceptions to section 245 relief. There are three specific exceptions 
of importance: (1) entry without inspection; (2) alien crewman; and (3) 

^"^ In fact, none of these latter grounds was invoked in a separate group of cases, studied 
in connection with the more intensive collection of denials based at least in part on dis- 
cretionary grounds. Of the latter collection, 26 cases were based on both statutory and 
discretionary grounds; 10 were based on substantive grounds of inadmissibility, seven 
prior crime cases, two subversive cases, and one exchange visitor. 

58 8 C.F.R. § 24S.2(a)(3) (1971). 

59 At several interviews we attended, applicants sought permission to depart. Adjudicators 
seemed skeptical of the accuracy of recurrent claims, particularly made during holidays, 
that a relative is ill in the "home country." While the rule authorizing denial for departure 
is reasonable in light of the purpose of § 245 — to save aliens the trouble of going back 
overseas to obtain relief — some written standards ought to be established and publicized 
to guide both adjudicators and applicants on this issue. Some consistency is obtained 
through the practice of examiners to refer all such requests to the Section Chief for de- 
cision or advice. 


Western Hemisphere native. All are well defined. The provision that an alien 
be "inspected and admitted or paroled" has been construed to negate any 
"requirement that this admission must have been regular, lawful or perma- 
nent."^*' The Operations Instructions make clear that, to be eligible, it is 
sufficient that the aHen entered "as a nonimmigrant, with or without a visa, 
[as] an immigrant, [as] a United States citizen when such entry was not 
obtained on the basis of a willful false claim to citizenship, or [as a] 
parolee. . . ."^^ Numerous decisions, principally of the Board of Immigration 
Appeals (BIA), further define the requirement.^^ The statute, its legislative 
history, INS regulations and decisions of the BIA and the courts, have like- 
wise well defined the meaning of "alien crewmen" and of "Western Hemi- 
sphere native." 

Grounds of inadmissibility. Considerable definition exists as to each oi 
the grounds of inadmissibility. An example of a relatively well-defined ground 
is the provision making "illiterates" inadmissible. The provision's applica- 
bility is carefully hmited by the statute itself,^-^ and procedural safeguards are 
established for its administration.^* The statutory language of most other 
grounds of inadmissibility is also reasonably clear or readily susceptible of 
definition. ^^ This is certainly true of the most frequently invoked grounds 
of inadmissibility, the requirement that certain applicants demonstrate that 
valid, unexpired visa petitions have been approved in their behalf and the 
requirement that certain applicants obtain labor certifications. The visa- 
petition ground is governed by reasonably well defined standards,^^ and is 

«o Gordon & Rosenfield § 7.7b(l), at 7-56. 

61 Operations Instructions § 245.1 (a) (April 8, 1970). 

«2£.g., Matter of Lim, 10 I. & N. Dec. 653 (1963) (member of U.S. armed forces 
ineligible since not amenable to inspection) ; Matter of C.N.J., 9 I. & N. Dec. 141 (1960) 
(spouse of alien who entered on fraudulent claim of citizenship held eligible despite hus- 
band's fraud). 

63 I. & N. Act, § 212(a) (25), 8 U.S.C. § 1182(a) (25) (1970). 

*'• § 212(b) goes into great detail about the manner in which consular and immigration 
officers are to resolve the literacy issue. The Attorney General is called upon to prepare 
and furnish adjudicators "with slips of uniform size, . . . each containing not less than 
thirty nor more than forty words in ordinary use, printed in plainly legible type, in one 
of the various languages or dialects of immigrants." I. & N. Act § 1212(b), 8 U.S.C. 
§ 1182(b) (1970). The ahen is allowed to designate the particular language or dialect in 
which the examination is to be made. 

65 See, e.g., I. & N. Act, § 2 12 (a) (30), 8 U.S.C. § 1182(a) (30) (1970) (aliens accom- 
panying excluded, dependent aliens) ; § 212(a) (19) 8 U.S.C. § 1182(a) (19) (1970) (stowa- 
ways) ; § 212(a)(1), 8 U.S.C. § 1182(a)(1) (1970) (mental retardation); § 212(a)(6),. 
8 U.S.C. § 1182(a)(6) (1970) (aliens afflicted with dangerous contagious disease); § 212 
(a) (11), 8 U.S.C. § 1182(a)(ll) (1970) (polygamists) ; § 212(a) (12) 8 U.S.C. § 1182(a) 
(12) (1970) (prostitutes); § 212(a) (19), 8 U.S.C. § 1182(a) (19) (1970) (procuring or use 
of fraudulent visa). 

66 For extensive discussion of the requirement, see Gordon & Rosenfield § 3.5. 


initially adjudicated separately from the section 245 proceeding. Unless an 
adjudicator chooses to look behind an adjudicated visa petition, his task on 
this issue is essentially ministerial — to determine whether the applicant seeks 
classification on one of the grounds requiring a visa petition, and if so whether 
a petition has been filed and approved. The adjudicator's task is also largely 
mechanical in determining whether, where required ,^^ a certification has been 
obtained from the Secretary of Labor that no adverse effects to American 
labor will result from the alien's admission. Whether an aUen comes within 
any of the "precertified" occupations^^ is an issue handled as part of the 
separate visa-petition process, except in nonpreference cases, where examiners 
make this determination.^^ The examiner must determine whether a non- 
preference alien is qualified in the occupation for which a certification is is- 
sued, and must review the validity of certifications in all Third, Sixth and 
nonpreference cases. These determinations involve considerable "discretion," 
but standards have been established which often resolve and always guide 
the examiner's decisions.^" 

Some statutory grounds of inadmissibility are exceedingly vague, in- 
cluding the provisions making inadmissible aliens "who have had one or more 
attacks of insanity," who are afflicted with "psychopathic personality," who 
have committed crimes of moral turpitude, and who seek to enter the United 
States "to engage in any immoral sexual act."^^ Others expressly or by clear 
implication confer discretionary authority to decide whether aliens fall within 
a statutory class of inadmissibility''^ and whether aliens who do fall within 
some inadmissible class should be granted a waiver.''^ In most instances, 

^"^ The requirement applies only to third and sixth preference and nonpreference immi- 
grants, and to some Western Hemisphere special immigrants. Id. § 2.20. 

*8 The Labor Department has issued a schedule that sometimes obviates the need for 
individual certifications. "Schedule A" is a list of occupations which are in short supply 
in the United States, any member of which is automatically entitled to a certification. See 
generally Gordon & Rosenfield § 3.6. 

^9 Immigrant Inspectors Handbook 5-1 to S-23; see Operations Instructions § 245.2 (c) 
(Oct. 1, 1969). 

70 See 29 C.F.R. § 60.5 (1971); Gordon & Rosenfield §§ 2.27(d) & (g) ; PLI, Labor 
Aspects of Immigration Law (Barbara Fhcker & Nicholas Vazzana ed. 1969). 
■ 71L & N. Act § 212(a)(3), (4), (9), (13), 8 U.S.C. § 1182(a), (3), (4), (9), (13) 

■^2 Examples of this tjrpe of discretionary authority are the provisions which call upon 
consular or immigration officers to determine whether certain physical defects, though not 
serious enough to warrant inadmissibihty on various specified medical grounds, are of 
"such a nature" that they "may affect the ability of the aUen to earn a living," I. & N. Act, 
§ 212(a)(7), 8 U.S.C. § 1182(a)(7) (1970), and whether aliens "are likely at any time to 
become pubUc charges," I. & N. Act, § 212(a) (IS), § 1182(a) (15) (1970). 

■^3 Some examples are the provisions enabling previously excluded or deported aliens to 
gain admissibiUty if "the Attorney General has consented to their reapplying for admis- 
sion," L & N. Act, § 212(a) (16) & (17),8U.S.C. §§ 1182(a) (16) & (17) (1970); authoriz- 
ing the admission of "the spouse, parent, or child" of a citizen or permanent resident, even 


however, Congress, the Service, and the courts have combined to give reason- 
ably specific content to the vague statutory pronouncements and to provisions 
incorporating, explicitly or implicitly, the exercise of discretion. Furthermore, 
these grounds were seldom invoked in the cases we studied. Those grounds of 
inadmissibility that were most frequently relied on by examiners in our ran- 
dom sample — prior criminal activity j'^^ subversive activities and affiliations,'^ 
and exchange-visitor provisions'^^ — have received considerable definition. 

though otherwise inadmissible because of fraud, misrepresentation or p)erjury in securing 
entry to the United States, where the Attorney General "in his discretion" consents to 
application for a visa and admission, I & N Act, § 212(i), 8 U.S.C. § 1182 (i) (1970) ; and 
allowing temporary admission on parole of any alien by the Attorney General "in his 
discretion," for "emergency or for reasons deemed strictly in the public interest . . . ," 
I. & N. Act, § 212(d)(5), 8 U.S.C. § 1182(d) (S) (1970). 

'4 Two statutory provisions relate to criminal activity. § 212(a) (10) is reasonably pre- 
cise, and has raised few problems in application; it bars aliens who have been convicted 
of two or more "offenses," "regardless of whether the conviction was in a single trial or 
whether the offenses arose from a single scheme of misconduct and regardless of whether 
the offenses involved moral turpitude, for which the aggregate sentences to confinement 
actually imposed were five years or more." I. & N. Act, § 212(a) (10), 8 U.S.C. § 1182(a) 
(10) (1970) ; see Gordon & Rosenfield § 4.12e. § 212(a)(9), on the other hand, is extremely 
vague; it makes inadmissible aliens who have been "convicted" of, or "admit" com- 
mitting, a "crime" involving "moral turpitude." 8 U.S.C. § 1182(a)(9) (1970). Despite 
the vagueness of this provision, significant clarity has been introduced, through regula- 
tions and adjudication, as to the meaning of "crime," Gordon & Rosenfield § 4.12c, 
"convicted," id., § 4.12d, "admit," id., § 2.43c(l)-(4), and as to its general scope, id., 
§ 2.43c. Obviously, great difficulty is presented by the phrase "moral turpitude." But the 
phrase occurs elsewhere in many laws, see Jordan v. De George, 341 U.S. 223, 227 
(1951), and has received persistent attention from agencies, courts and scholars. While no 
satisfactory abstract definition of the term seems feasible, the sheer mass of cases dealing 
with Uterally dozens of specific issues has added considerable certainty in the pragmatic 
task of deciding cases. See, e.g., the extensive discussion of specific crimes, classified into 
various categories, in Gordon & Rosenfield § 4.14. The statutory scheme includes a 
variety of exemptions and waivers. Some are surprisingly well defined. The ill-defined 
exceptions are applicable in very few cases. See generally id., § 2.43d. 

■^5 Three provisions make "subversive" aliens inadmissible. Two of these, I. & N. Act, 
§ 212(a) (27) & (29), 8 U.S.C. § 1182(a) (27) & (29) (1970), lack significance for our 
purposes, since intense criticism, and perhaps the danger of judicial invalidation, has 
deterred their invocation to deny § 245 relief. The third provision, invoked with some 
regularity in § 245 cases, makes inadmissible aliens who are, or at any time have been 
members of certain subversive organizations, particularly of the Communist Party. I. & N. 
Act, § 212(a) (28), 8 U.S.C. § 1182(a) (28) (1970). Though vague and threatening on its 
face, this provision has been narrowed through statutory limitations and judicial inter- 
pretation. Gordon & Rosenfield §§ 2.47c & 4.11. Broad discretion is conferred on the 
Attorney General to exempt certain otherwise admissible aUens from the statute's opera- 
tion. I. & N. Act, § 212(a) (28) (I), 8 U.S.C. § 1182(a) (28) (I) (1970). But this discretionary 
power is limited in its potential appUcability by the fairly detailed conditions of its exer- 
cise, which have received some administrative definition, e.g., 22 C.F.R. § 42.91(a) (28) 
(vii) (1972), and the likelihood of considered (albeit cautious) decision making is enhanced 
by the statute's requirement that the Attorney General "promptly make a detailed report 
to the Congress" in each case where the waiver provision is applied. 

7^8 U.S.C. § 1182(e) (1970), makes any "exchange visitor" inadmissible until the alien 
has spent at least two years in the country of his nationahty or, until recently, another 


Visa number unavailable. By far the most frequent basis for denying 
applications is unavailability of an immigrant visa number. Adjudicating 
this issue usually is simple. The examiner consults the current Department of 
State Visa Office Bulletin on Availability of Immigrant Visa Numbers, which 
describes whether visa numbers are currently available for all categories of 
aliens and estimates when numbers will become available. The statute says 
a number must be "immediately available" to an applicant "at the time his 
application is approved. "^^ The regulations define this term to mean that 
an application will be accepted for processing "if the applicant has a priority 
date on the waiting list which is not more than 90 days later than shown in 
the [visa] Bulletin or the Bulletin shows that numbers for visa applicants 
in his category are current."''^ Other provisions settle most conceivable doubts 
concerning this ground.'^^ 

b. Discretionary grounds. Examination of 135 denials based on discre- 
tion revealed six categories of discretionary ground: (1) mala fide nonimmi- 
grant at time of entry; (2) violation of nonimmigrant status after entry; 
(3) bad faith dealings with the government; (4) lack of "good moral charac- 
ter"; (5) foreign relations needs; and (6) desire to keep the ahen's family 
unit together. Though analytically distinct, these grounds frequently overlap 
when applied. For example, an alien who, at the time he applies for a non- 
immigrant visa or nonimmigrant entry, intends to remain in the United 
States permanently or to seek unauthorized employment is considered a mala 

country approved by the Secretary of State. This statutory proscription is clear in that 
there is no doubt to whom it applies. But considerable discretion is created by the 
provision which states that the Attorney General, in certain circumstances, "may waive" 
the two-year requirement when he finds a waiver to be "in the public interest." Before the 
Attorney General may act, however, there must be a favorable recommendation by the 
Secretary of State at the request of an interested government agency, or of the Commis- 
sioner of INS "after he has determined that departure from the United States would im- 
pose exceptional hardship upon the alien's spouse or child" where such spouse or child is 
a citizen or lawfully resident ahen. See Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970). 
Some legislative history exists, moreover, to guide the Service in exercising this waiver 
power, and procedures and standards have been established for handling requests for 
waivers at the recommendation of government agencies, which in any event occur in- 
frequently. See Gordon & Rosenfield 6-50 to 6-53. Waivers on hardship grounds are more 
frequent. Some guidelines exist, both as to what factors are considered in determining 
exceptional hardship and as to the factors which in themselves will not usually be found 
to satisfy the statutory prerequisite. Id. at 6-53 to 6-56. But the scope of discretion is 
great, and apparently fluctuates according to congressional desire. 

"8 U.S.C. § 1255 (1970). 

78 8 C.F.R. § 245.1(g) (1971). 

"^^ The regulation clearly defines "priority date," and states that no application shall be 
approved "until an immigrant visa number has been allocated by the Department of 
State." When a visa number becomes unavailable after an application is accepted for filing 
and processing, the case is "held in abeyance pending the allocation of a visa number by 
the Visa Office." Operations Instructions § 245.4(a) & (b) (May 20, 1970). Adjudication 
can become complex when 8 U.S.C. § 1152 (1970) is involved. 


fide nonimmigrant. If he actually works, after entry, without INS permission,, 
he will have violated his nonimmigrant status. To get here he may have lied 
to the consulate in his application for a nonimmigrant visa concerning his 
intention to work or remain in the United States. To stay here he may have 
Ued to INS in an application to extend his visit concerning his employment 
status. Such overlap does not prevent analysis of independent grounds, how- 
ever, since each ground is regarded and used as an independently valid basis 
for the adverse exercise of discretion. 

The proportion in which each of these categories of discretionary grounds 
was utilized by examiners in the cases we studied is shown in Table 3. The most 
frequently cited category, that of fraud or bad faith, was present in 65 per 


Discretionary Grounds Invoked To Deny Section 245 Relief* 

A. Mala Fide Nonimmigrant 

1. Intended to seek employment. 

2. Intended to marry citizens or 

permanent resident. 

3. Other. 

B. Violated Nonimmigrant Status 

1. Unauthorized employment. 

2. Violated transit visa conditions. 

3. Other violations of status. 

C. Bad Faith Dealings With Government — 

False Testimony or Documents Sub- 
mitted to: 

1. U.S. consul. 

2. INS at time of entry. 

3. INS in connection with request 

for extension of stay. 

4. INS in connection with sec. 

245 application. 

D. Bad Moral Character 

E. Foreign Relations Needs 

F. Separation of Family Unit 



20 40 


(Base: 135 cases) 

• Percentages sum to more than 100 per cent due to reliance on multiple grounds. 

cent of the discretionary denials. False evidence was submitted to the consul 
in 28 per cent of the cases, and to INS in extension-of-stay applications in 
22 per cent. Aliens were found to have violated their nonimmigrant status 
in 53 per cent of the discretionary denials, almost all of which (48 per cent) 
consisted of findings of unauthorized employment. The mala fide nonimmi- 


:grant ground was invoked in 40 per cent of the cases; intent to seek employ- 
ment at time of entry was relied on in 15 per cent of the cases; foreign rela- 
tions needs in four per cent; and bad moral character in four per cent. 

Identification of the categories of discretionary grounds was possible 
through several Board of Immigration Appeals decisions, and through many 
more unpublished denial opinions made available under the Freedom of In- 
formation Act. But here any significant guidance ends. There are few guides 
to adjudicators in applying these grounds, and virtually no limit on their 
authority to decide any application one way or the other. The Attorney 
General, through the Service, has promulgated virtually no regulations; such 
standards as have been formulated are almost invariably nonpublic, and in 
any event leave wide authority in the hands of adjudicators. During the last 
19 years of activity under section 245, the Board of Immigration Appeals 
has pubHshed about 35 decisions concerning the exercise of discretion which 
the Service insists provide adequate guidance. But this meager collection 
deals with only a minute proportion of the issues relating to discretion under 
section 245; contains few opinions of general significance; includes several 
decisions expressly or implicitly inconsistent with each other; and in fact 
reflects a position on the meaning of discretion that is antithetical to a mean- 
ingful system of precedent. The courts have adopted a hands-off policy, 
despite the availability of established principles'^ to perform their legally 
mandated supervisory role. The overall result has been what Judge Abraham 
Freedman called "a wide-open system."'^ 

Burden of proof. Relying on the notion that adjustment to permanent 
resident is a "privilege" rather than a "right," the Service initially adopted 
the rule that "adjustment of status under section 245 will be denied in the 
absence of particular equities."'^ In Matter of Ortiz-Prieto the BIA stated 
that the "extraordinary relief" provided for in section 245 can be granted 
only in meritorious cases.'^ The courts upheld this position, through the 
notion that one "who meets the objective prerequisites is merely eligible for 
adjustment of status . . . [and] in no way entitled to such relief."'^ The 
problem created by this rule for aliens, and adjudicators, was the lack of 
any guidance as to when relief should be granted. 

The burden-of-proof ground was not invoked as an intrependent basis for 
denying relief in any of the cases we studied, although it was mentioned as 

80 See, e.g., Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966) (Friendly, J.). 

81 Ameeriar v. INS, 438 F.2d 1028, 1042 (3d Cir. 1971) (en banc) (dissenting opinion). 

82 Matter of Fuentes-Blanco, Int. Dec. No. 1938, at 4, — I. & N. Dec. — (1968), nting 
Matter of Leger, 11 I. & N. Dec. 796 (1966), and Matter of Ramirez, 12 I. & N. Dec. 78 

83 11 I. & N. Dec. 317 (1965). 

84 Jarecha v. INS, 417 F.2d 220, 223 (Sth Cir. 1969), and cases cited therein. 


a background factor in many of them. Examiners probably realized how un- 
fair it would be to deny relief for essentially no reason. The BIA, in Matter 
of Aral, has recently overruled its precedent and held that, despite the ab- 
sence of "equities," if the application presents no "adverse factors, adjust- 
ment will ordinarily be granted. . . ."^^ 

Mala fide nonimmigrant. The notion that change-of -status relief should 
depend on the good faith of the applicant's entry as a nonimmigrant originated 
with the 1952 Act. The Attorney General was to exercise his discretion to 
grant relief "under such regulations as he may prescribe to insure the appli- 
cation of this paragraph solely to the cases of aliens who entered the United 
States in good faith as nonimmigrants. . . ."^^ Therefore, the ground was a 
statutory prerequisite to the favorable exercise of discretion. In 1960, Con- 
gress deleted the requirement in order to "broaden the existing procedure for 
the adjustment of the status of a nonimmigrant ... to include all aliens 
(other than crewmen) who have been inspected at the time of their entry 
... or who have been paroled into the United States. "^^ 

The Service, however, has adopted the position (in nonpublic Operating 
Instructions) that although the requirement has been deleted from the 
statute, "admission as a mala fide nonimmigrant shall be considered with 
other factors in determining whether favorable discretion will be exercised."®* 
Both the BIA and the courts have upheld this construction, reasoning that 
Congress in 1960 eliminated the requirement as a statutory prerequisite but 
did not foreclose consideration of the factor to prevent aliens from disregard- 
ing immigration laws.®^ The position makes clear, at least to a knowledgeable 
alien, that the circumstances of his entry may be a relevant factor in section 
245 cases. It does Httle, however, to clarify the meaning of a "bad faith" 
entry, and does virtually nothing to guide or hmit the adjudicator's power 
to give or not give such an entry controlling significance. 

The principal controversy surrounding the meaning of the mala fide non- 
immigrant ground is whether it was intended to protect the consular process, 
or whether it was meant only to prevent aliens from evading the quota or 
numerical-limitations system. Under the former view, an alien who obtains a 
nonimmigrant visa from a consular officer intending to become a permanent 
resident may be deemed unworthy of change of status relief even though he 
was ehgible for the immediate issuance of an immigrant visa at the time he 
obtained the nonimmigrant visa. Such an alien has evaded the consular 

85 Int. Dec. No. 2027, at 3, — I. & N. Dec. — (1970). 

86 1. & N. Act, § 24S, 66 Stat. 217. 

87 S. Rep. No. 1651, 86th Cong., 2d Sess, at 3 (1960). 

88 Operations Instructions § 245. 1(a) (April 8, 1970). 
89£.g., Castillo V. INS, 350 F.2d 1, 3-4 (9th Cir. 1965). 


procedure for becoming an immigrant but he has not evaded the quota sys- 
tem since he was eligible for an immigrant visa number. Under the latter view, 
the hypothetical alien could be denied relief on this ground only if he secured 
a nonimmigrant visa in bad faith because he was ineligible for an immigrant 
visa number. 

In Matter of Barrios, ^^ decided soon after the 1960 deletion of the bona 
fide nonimmigrant requirement, a Special Inquiry Officer denied relief to a 
22-year old Bolivian after finding that he had entered the United States 
with a preconceived plan to remain permanently. The record contained ample 
evidence to support the SIO's finding, including admissions by the alien, 
and no equities were present, since Barrios was young, had no ties to the 
United States, and had been here only a short time. Despite these facts, the 
Board found that "discretionary relief is warranted. , . ."^^ The Board gave 
several reasons for its decision, and insisted that its judgment "turns upon 
the facts of this particular case."^^ The result seems most reasonably ex- 
plained, however, by the fact that Barrios, a native of BoUvia, at the time a 
nonquota country, may have evaded the consular process but had not at- 
tempted to circumvent any quota restriction.^^ This reading is strongly sup- 
ported by the Board's decision in Matter of Sauer,^ a companion case to 
Barrios. Sauer, too, had evaded the consular process. But he had evaded the 
quota restrictions as well. Despite strong equities in his favor, the Board up- 
held the SIO's discretionary denial of relief because the alien had "intended 
to circumvent the quota restrictions when he falsely represented his immigra- 
tion status to the Consul at Paris. "^^ 

The Barrios position could have both guided and limited examiner discre- 
tion. But in a series of decisions the BIA undermined Barrios by allowing 

90 10 1. & N.Dec. 172 (1963). 
»i/<f. at 176. 
82 /d. at 173. 

93 Barrios had been unable to obtain an immigrant visa because he had lacked an 
affidavit of support. The Board also reHed on a notion, developed prior to 1960 by one 
federal court, to the effect that a nonimmigrant alien could intend to become a permanent 
resident at entry, without becoming ineligible for change of status to permanent resident, 
so long as the alien intended to attempt to achieve his aim through lawful means. See 
Brownell v. Gutnayer, 212 F.2d 462 (DC. Cir. 1954) ; Brownell v. Carija, 254 F.2d 78 
(D.C. Cir. 1957). But it refused to adopt the principle as a rule, and has never done so. 

9*10 I. & N. Dec. 177 (1963). 

^^ Id. at 177. Sauer had registered for an immigration visa under the Israeli quota in 
1957. His parents received visas and entered the United States in 1958 and 1959. Sauer 
than appUed at Tel Aviv for a nonimmigrant visa, which was denied on the ground 
that he intended to immigrate. He then went to Paris and secured a nonimmigrant visa, 
after falsely representing that he had never applied for an immigrant visa and that his 
parents were then residing in Israel. Within a few days of entry he had married an 
American resident, who filed a third preference visa petition in his behalf. 

493-361 O - 73 - 22 


adjudicators to deny relief on the mala fide nonimmigrant ground despite 
the absence of any evidence of intent to evade quota restrictions.^® Then in 
Matter of Rubio-Vargas, the Board reversed an SIO's grant of relief to an 
alien who entered as a visitor with intent to apply for permanent residence so 
he could stay with his American wife.^'^ The SIO pointed out that the alien 
was eligible for admission as an immigrant and that to send him back to 
Peru would be an unnecessary waste of time and money. But the Board, 
now explicitly emphasizing the importance of protecting consular posts from 
evasion, stated that "the proper procedures followed in such posts should not 
be circumvented by aliens abroad who desire to accelerate their immigration 
to this country. Any short-cutting of these functions should be avoided."^* 
The confusion engendered by these decisions is best illustrated in the Gordon 
and Rosenfield treatise, where they are all cited as equally authoritative in- 
stances of the proper exercise of discretion.^^ 

The Service does provide, in its nonpublic Operations Instructions, that 
"when the evidence establishes that the alien obtained his nonimmigrant visa 
to evade the normal immigrant visa process and there are no substantial 
equities present in his case, the appU cation should be denied in the exercise 
of discretion."^''*' Furthermore, some "equities" have been identified, largely 
through BIA decisions, including marriage to a citizen, old age, close ties 
to an American citizen or permanent resident, and hardship if departure is 
required.^''^ Finally, some indications are given adjudicators of the type of 
evidence that might indicate bad faith entry, including marriage or employ- 
ment soon after arrival.^"^ 

These efforts appear far more meaningful than they are. First, what are 

96 Matter of Diaz-Villamil, 10 I. & N. Dec. 494 (1964) (alien's evasive and con- 
tradictory testimony failed to establish he did not intend to circumvent normal immigrant 
visa issuing process) ; Matter of Garcia-Castillo, 10 I. & N. Dec. 516 (1964) (alien entered 
fraudulently for medical treatment but secured employment within one week of entry) ; 
Matter of Azmitia, 10 I. & N. Dec. 774, 775 (1964) (alien in "completely frank" statement 
said that, while he told the consul abroad that he wanted only to visit the United States, 
his hope was to become an American after he arrived). In the first and second of these 
cases. Barrios was distinguished on the ground that Barrios' claim that at the time he 
secured his nonimmigrant visa he "had every intention of complying with the terms of 
his temporary admission" was uncontroverted. In the third case, Barrios is not mentioned. 

«7 11 I. & N. Dec. 167 (1965). 

»8/rf. at 169. 

99 Gordon & Rosenfield § 7.7d, at 7-65. 

100 Operations Instructions § 245.3(b) (March 25, 1970). 

101 See, e.g., Matter of Tonga, 11 I. & N. Dec. 621 (1966) (several "equities" identified: 
native born citizen child, presence of wife and other child; employment at good salary; 
citizen brother) ; Matter of Woo, 10 I. & N. Dec. 347 (1963) (fraud occurred at age 12; 
long residence in U.S.; excellent character and military record in U.S. Army). 

102 £.g.^ Chen v. Foley, 385 F.2d 929 (6th Cir. 1967) (employed soon after arrival; 
relief denied partly for this reason). 


"substantial" equities? The Service does not even try to say. Instead it states 
(once again in a nonpublic source) : "Substantial equities are considered to 
exist in a case if the facts are such that the alien would be granted voluntary 
departure until he is invited to appear at an American consulate to apply for 
an immigrant visa. . . ."^*^^ The normal sort of voluntary departure is almost 
invariably offered to aliens denied section 245 relief, so that process certainly 
provides no guidance. The special sort of voluntary departure referred to in 
the instruction, which amounts to a suspension of enforcement of deportation 
until something like preexamination becomes available, is hardly a reassuring 
guide. The circumstances in which such relief must or should be afforded or 
denied are as unclear as those in which change of status must or should be 
granted or denied.^^ Second, while the Service guideline states that an ex- 
aminer should deny reUef to a mala fide nonimmigrant in the absence of 
"substantial equities," he is not told that a favorable exercise of discretion 
in such circumstances would be improper or an abuse of power. And the guide- 
line need not be read even to imply that an examiner should grant relief to a 
mala fide nonimmigrant whose case does present "substantial equities." 

Violation of nonimmigrant status. Nonimmigrant aliens who fail to 
maintain the status in which they entered the United States, or to comply 
with the conditions of their status, are deportable.^"^ Adjudicating deport- 
abiUty on these grounds is relatively simple.^'^^ 

Under the 1952 statute, an alien was eligible for relief only if he entered 
the United States as a bona fide nonimmigrant and "is continuing to main- 
tain that status. . . ."^^^ Congress eliminated this requirement by amendment 
in 1958 in order to liberalize section 245 to avoid private bills and to make 
preexamination unnecessary, with the result that violation of nonimmigrant 
status no longer precluded relief under section 245. The Service adopted the 
same position with respect to repeal of the violation-of-status requirement 
that it had taken in connection with repeal of the mala-fide-nonimmigrant 
ground. Examiners have continued to weigh evidence of violations of status 
in exercising discretion. And the Service gives even less guidance to adjudi- 
cators in deciding whether to apply this ground than it provides in connection 
with the bona fide nonimmigrant requirement. Examiners generally weigh 
the "equities" here as well, but nothing tells them what to weigh or how 
heavily. Finally, in exercising discretion adversely an examiner may rely on 
evidence of a violation which may be insufficient to warrant a finding of 

103 Operations Instructions § 24S.3(b) (March 25, 1970). 

104 See infra, text accompanying notes 169-183. 

105 1. & N. Act §§ 241(a)(2), (9), 8 U.S.C. §§ 12S2(a)(2), (9) (1970). 

106 See generaUy Gordon & Rosenfield § 4.9. 

107 1. & N. Act, § 245(a), 66 Stat. 217. 


deportability. This result drastically reduces the utility and significance of 
guidelines and standards under the statutory ground. 

Misrepresentation and bad moral character. The most frequent basis 
for discretionary denials is bad faith dealings with the government, invari- 
ably consisting of misrepresentations to secure entry to, or remain in, the 
United States. There are statutory provisions relating to misrepresentations 
that have been reasonably well defined. Thus, aliens are deportable if they 
were excludable at entry,^"^ and one class of excludable or inadmissible aliens 
includes anyone who seeks to procure or procures "a visa or other documenta- 
tion, or seeks to enter the United States, by fraud, or by wilfully representing 
a material fact."^''^ Regulations, scholars and hundreds of cases have given 
particularized meaning to this provision, including the limitations of wilful- 
ness and materiality.^^" Hardship waivers increase somewhat the difficulty 
of decision making, but the waiver provisions are narrow in scope and have 
received considerable definition. ^^^ 

These standards could provide significant guidance to adjudicators under 
section 245. Instead, adjudicators freely rely on discretion in both these 
types of cases. This creates great uncertainty, obvious in those cases where 
no statutory violation has occurred. Less obvious, but also important, are 
those cases in which the adjudicator could rely on the statutory violation but 
instead denies as a matter of discretion. Aliens denied relief as a matter of 
discretion are apparently much better off when they apply for an, immigrant 
visa overseas than if they were found deportable for misrepresentations. Ad- 
judicators are therefore giving aliens a substantial benefit by relying on dis- 
cretion instead of an available statutory ground, and doing so without stan- 
dards to guide or limit their decisions. 

Another statutory provision relating to misrepresentations is found in the 
"good moral character" requirement of section 101(f) (6),^^^ The same statute 
contains provisions relating to tj^pes of conduct relied on by adjudicators in 
adversely exercising discretion in section 245 cases, including one that deems 
a person lacking in good moral character if, during the relevant period, he 

108 1. & N. Act, § 241(a)(1), 8 U.S.C. § 12Sl(a)(l) (1970). 

109 1. & N. Act, § 212(a) (19), 8 U.S.C. § 1182(a) (19) (1970). 

110 See generally Gordon & Rosenfield § 4.7c. Many cases have clarified, for example, 
the relative significance of common types of misrepresentations. Id., § 4.7c(3). 

111 Only an alien who is the spouse, parent, or child of a United States citizen or of an 
alien lawfully admitted for permanent residence, and who is otherwise admissible, may 
qualify for the statutory hardship waivers for misrepresentations. Such an alien who is 
within the United States is automatically exempt from deportation. 8 U.S.C. § 1251 (f) 
(1970). If such an alien is seeking to enter, he may overcome excludability if the Attorney 
General consents. 8 U.S.C. § 1182(i) (1970). See Gordon & Rosenfield § 4.7c(l) at 4-39 
to 4-42. 

112 1. & N. Act, § 101(f)(6), 8 U.S.C. § 1101(f)(6) (1970). 


or she "has committed adultery."^^^ Apart from the presence of a vague but 
unused proviso,^^* the provisions of section 101(f) are either quite definite 
because they incorporate grounds of inadmissibility by reference, or have 
received substantial definition through litigation.^^^ Supervision by the BIA 
and courts has occurred because the "good moral character" requirement is 
a statutory prerequisite to discretionary relief under provisions other than 
section 245. When an adjudicator denies suspension of deportation for lack 
of good moral character, courts may term his judgment "discretionary,"^^® 
but will often review the merits of such judgments by a standard discernibly 
more exacting than "arbitrary or capricious," under the recognized principle 
that "where discretionary relief is denied on the ground of ineligibiUty, the 
ruling is subject to full court review. . . ."^^'^ 

The usefulness of standards developed under section 101(f) has been un- 
dermined, however, because the courts have allowed INS to deny relief to 
aliens on the basis of discretion even where the acts involved relate to statu- 
tory categories of ineligibility, and even where the acts are assumed to be 
insufficiently egregious to justify a finding of ineligibility for lack of good 
moral character. In the important case of Wong Wing Hang v. INS,^^^ for 
example, an applicant for suspension of deportation was found by INS to 
possess good moral character despite what Judge Friendly termed "prevari- 
cation and concealment" to the Service during the relevant period. The court 
sustained denial of relief on the ground that INS could, in its discretion, re- 
quire an aUen "who has gained entry by a false claim of United States 
citizenship and has cooperated with others in similar efforts . . . [to] win 
their favor only by a spotless record in later dealings with them. . . ."^^^ The 
court's rationale leaves INS free, subject only to review on the basis of the 
"arbitrary or capricious" standard, to give controlling significance in exer- 
cising discretion to any set of facts relating to arguably undesirable but con- 
cededly unproscribed conduct. 

113 1. & N. Act, § 101(f)(2), 8 U.S.C. § 1101(f)(2) (1970). Other categories of persons 
lacking good moral character under the statute include habitual drunkards, prostitutes, 
and persons who have been convicted of serious crimes. 

114 The statute provides that "the fact that any person is not within any of the fore- 
going classes shall not preclude a finding that for other reasons such person is or was 
not of good moral character." I. & N. Act, § 101(f), 8 U.S.C. § 1101(f) (1970). 

115 For a thorough treatment of all the categories in § 101(f), including false testimony 
and adultery, see Comment, 61 Mich L. Rev. 352 (1962). See also Gordon & Rosenfield 
§ 7.9d(3), at 7-99 to 7-102; Talavera v. Pederson, 334 F.2d 52 (6th Cir. 1964). 

116 E.g., Fugiani v. Barber, 261 F.2d 709, 712 (9th Cir. 1958) ; Hiroichi v. Brownell, 
235 F.2d 536 (D.C. Cir. 1956); Bruno v. Sweet, 235 F.2d 801 (8th Cir. 1956). 

li^Silva v. Carter, 326 F.2d 315, 320 (9th Cir. 1963). 

118 360 F.2d 715 (2d Cir. 1966). 

119 id. at 719. 


Foreign relations needs. Foreign countries occasionally request the United 
States to deny applicants permanent residence, usually because the alien owes 
the foreign government money. Often the funds owed were given for study in 
the United States, although sometimes the alien may have stolen the money. 
Unless the alien involved entered under an exchange program, the government 
has no specific statutory ground upon which to deny permanent residence. 
Consequently, the government utilizes its discretionary power to deny relief 
in many such cases. The BIA has held that INS may legally rely on foreign 
relations needs in exercising discretion, even with respect to students not part 
of any exchange program.^^" A handful of BIA decisions have developed 
some rather vague standards to guide or limit decisions on this ground.^^* 
But many issues are completely unsettled. ^^^ Furthermore, the INS regula- 
tions on this subject do httle to guide the judgment of adjudicators. The basic 
rule is that rehef shall not be denied on this ground as a matter of discretion 
"unless there is in the record a firm, unequivocal statement" from the State 
Department that granting relief "would have an adverse effect upon the for- 
eign relations between the United States and the country of the applicant's 
nationality. . . ."^^ A statement, however firm and unequivocal, is not a 
reason. And adjudicators are not called upon to insist that a reason be given. 
However, this lack of standards causes INS adjudicators relatively Uttle 
difficulty. In the cases we examined, they relied on this ground only when the 
State Department recommended it, and apparently always accept a "firm, 
unequivocal" recommendation. Broad discretion exists but it seems to be 
primarily exercised by the State Department rather than INS. 

120 In Matter of Tayeb, 12 I. & N. Dec. 739, 742 (1968), the Board rejected as "wholly 
irrelevant" the argument that discretion should never be used to deny relief to aliens 
here on regular student visas, on the basis of foreign relations needs, since Congress has 
indicated that, unlike exchange students, aliens on regular student visas need not fulfill 
any foreign residence requirement or obtain waivers. 

121 Matter of Wolfe, 10 I. & N. Dec. 651 (1964), for example, involved an alien stu- 
dent whose education was financed by the Iranian Government, in exchange for which 
she signed a commitment to return and work in Iran for the same period of time she 
would spend in the United States. The State Department recommended that the ahen 
be required to return to Iran or arrange with the Iranian Government for repayment of 
"at least some" of the $10,380 invested in her education. The SIO's denial of rehef on 
this basis was upheld by the Board, which stated that favorable action could be con- 
sidered when the apphcant made "satisfactory arrangements for repayment and obtains 
a release from her commitment. . . ." Id. at 652 (emphasis added). Compare Matter of 
Youssef, 11 I. & N. Dec. 163 (1965), and Matter of Tayeb, 12 I. & N. Dec. 739, 740 (1968). 

122 For example, in Matter of A., 9 I. & N. Dec. 249 (1960), the BIA upheld denial 
of relief on this ground where a former U.A.R. official had misappropriated funds of his 
native country. What should the Government do if an alien denies his foreign country's 
claim that he misappropriated funds? Accept the foreign nation's allegation? Hold a 
hearing on the issue? Even more difficult problems are raised where a foreign government 
seeks to reobtain physical custody of an ahen for political reasons. 

123 Immigrant Inspectors Handbook 10-41.1. 


Separation of family unit. This is perhaps the least definite, and certainly 
the most questionable, of all discretionary grounds invoked by examiners to 
deny adjustment. Our immigration laws strongly favor uniting Americans 
with their families.^^* Further, it is clear that, in exercising discretion, an 
adjudicator may give favorable weight to the applicant's close family ties 
with permanent residents or citizens of the United States.^^^ Conversely, 
the lack of family in the United States may at least arguably be a negative 
factor in connection with the exercise of discretion, particularly when the 
alien was assumed to have the burden of proving himself worthy of relief.^^" 
None of the standards or rules developed, however, has any relationship to 
the discretionary ground exercised by examiners. In the situations described 
above, aliens who are seeking to become Americans are helped if they have 
close family ties in America. What the Service does under the separation-of- 
family unit ground, however, is to deny a qualified alien relief for which he 
is eligible when to grant relief would separate the alien from members of his 
family unit abroad. 

The separation-of-family-unit ground is typically used in two situations — 
where the alien appUcant applies alone but has close family ties abroad, and 
where the applicant, though eligible himself, has appUed along with members 
of his family who are found to be ineligible. The potential scope of the ground 
is enormous, since almost every alien who applies for permanent residence 
has close family ties abroad. Difficult questions of application abound. Must 
the family be viable? Must the aUen be abandoning the family? How should 
cases be decided when the alien has close ties both here and abroad? Is it 
relevant to inquire whether the family abroad would be better or worse off 
if the alien were denied relief? What if the applicant proves that he wants to 
be united with his family and that he is working and saving for the purpose? 

Several decisions of the BIA and courts provide some guidance — at least 
in making clear that the authority of examiners under this ground is ex- 
tremely broad. Thus, it is settled that the ground may legitimately be in- 
voked in exercising discretion.^^'^ Other cases allow adjudicators to consider 

i24Scalzo V. Humey, 225 F. Supp. 560, 561 (E.D. Pa. 1963), aff'd, 338 F.2d 339 (3d 
Cir. 1964). 

i25£;.g., Matter of Huey, Int. Dec. No. 1903, — I. & N. Dec. — (1968); see Matter 
of M., 2 I. & N. Dec. 751 (1946) (suspension of deportation). 

126 £.g., Santos V. INS, 375 F.2d 262 (9th Cir. 1967); see United States ex rel. Hinto- 
poulos V. Shaughnessy, 353 U.S. 72 (1957) (suspension of deportation). 

I27jarech v. INS, 417 F.2d 220, 225 (Sth Cir. 1969) (wife in India); Hun Chak Sun 
V. INS, 415 F.2d 791 (9th Cir. 1969) (wife and two children in Taiwan) (semble) ; Chen 
V. Foley, 385 F.2d 929 (6th Cir. 1967) (wife and eight children in Phillipines) ; Matter 
of Ortiz-Prieto, 11 I. & N. Dec. 317 (1965) (wife and three children in Chile); Matter 
of Leger, 11 I. & N. Dec. 796 (1966) (wife and three children in Tonga); Matter of 
Ramirez, 12 I. & N. Dec. 78 (1967) (wife and three children in El Salvador). 


abandonment and inability of the alien to pay to bring his family to the 
United States, and to ignore such factors as whether the family is salvageable 
and whether the alien or the family abroad will be better or worse off if 
relief is denied. ^^^ In none of these cases is it suggested, however, that the 
adjudicator must weigh factors he is permitted to weigh or disregard factors 
he is permitted to ignore. The sole instance in which the Board has in any 
way Hmited discretion under this ground is Matter of Mandrinan, where the 
applicant, a Philippine architect, was found both eligible and entitled to sec- 
tion 245 relief, except for the fact that his wife, an exchange student who 
simultaneously applied, was ineligible because she had failed to satisfy, or 
obtain a waiver of, the two-year foreign residence requirement. The SIO 
denied the husband relief to avoid separation of the family unit. The Board 
reversed, stating that, on the facts of this particular case, if husband and 
wife chose to live apart "it is their concern."^^^ This is, however, an inconse- 
quential limitation on the power of adjudicators under a ground that is po- 
tentially applicable to many applicants and that was in fact applied in IS 
per cent of the discretionary denials we studied. 

2. Standards and Consistency 

The foregoing analysis demonstrates that, in general, statutory prerequi- 
sites are more clearly defined than grounds for discretionary denial. More- 
over, the scanty definition of discretionary grounds that does exist consists 
almost entirely of identifying factors relevant to decision making. Our inquiry 
here is whether the relative absence of standards correlates with inconsistent 
decision making on the merits of applications. Later, we will examine the pos- 
sible effects of broad discretion on the process of administrative review and 
enforcement. We choose inconsistency as our standard of reference because, 
with all its difficulty, it is at least a standard: most persons will agree that 
justice means, at the very least, equal treatment by the government for those 
equally situated. 

Interviews cannot be relied on heavily to prove inconsistency, but our over- 
all impression from considerable exposure to examiners was that they applied 

128 Matter of Zavala, 10 I. & N. Dec. 628 (1963), for example, involved an alien 
widow with five children in Honduras, who were being cared for by their parental grand- 
parents. The Board affirmed denial of relief, stating that to admit her to residency would 
be to "sanction abandonment of her children." Id. at 629. The Board did not inquire 
whether the alien parent would be an asset to her children. Indeed, Mrs. Zavala had 
been arrested for theft, and seemed irresponsible. In Chen v. Foley, 385 F.2d 929 (6th 
Cir. 1967), the alien was denied relief partly because of his close family ties abroad, even 
though he had illegally remarried and was found to have shown no concern for his 
family. In Lihati Lui Unga v. INS, 404 F.2d 48, 49 (9th Cir. 1968), the applicant, a 
native of Tonga, had a wife and seven children, apparently was willing to unite his family 
in America, but was denied relief on the ground that he lacked the funds "soon" to H'> s^ 

129 xhe case was one of those we examined, and is presently unreported. 


different standards in exercising discretion. As to the mala fide nonimmigrant 
requirement, for example, one officer's view, similar to official policy, was to 
ignore violations when strong equities were present. Another examiner stated, 
however, that he applied the ground only when a blatant circumvention of 
the visa process occurred. A supervisor, one of whose functions is to help 
achieve uniformity, did not know in 1969 that the mala fide nonimmigrant 
requirement had been deleted as a statutory prerequisite in 1960, and there- 
fore apparently regarded its application as mandatory. Sometimes the alien's 
"desirability" was treated as an "equity" in his or her favor, and desirability 
included the notion that the alien was an "asset" as an engineer, or "needed" 
as a nurse, or "decent" as a father who was supporting his family in the old 
country. Furthermore, adjudicators seemed to regard discretionary grounds 
as devices to deny aliens reUef where they seemed undesirable but could not 
be proved inadmissible. One stated that examiners ignored violations of status 
unless "we were looking to deny it, and we couldn't exactly put our finger 
on why." An example of this sort of action was a case in which the adjudi- 
cator sent a letter to an applicant denying relief on the ground that the appli- 
cant had been admitted as a visitor, and "since you now intend to remain 
permanently in the United States, contrary to the purpose for which you 
were admitted, your application is denied as a matter of discretion." 

Finally, and perhaps most significantly, adjudicators felt that Service 
policies actually allowed or fostered inconsistency. First, examiners stated that 
the Service has asked them to apply discretion differently at different periods; 
apparently INS had authorized much stricter application of discretionary 
grounds in previous years than it now desires. One suggested that discretion- 
ary standards were left vague to allow the Service to get tougher on aliens 
when necessary. Second, examiners are convinced that the Service capitulates 
to congressional and other pressure, thereby creating inconsistencies in the 
speed and outcome of adjudications. Inquiries, called "congressional," occur 
in about five per cent of all section 245 cases.^^" They receive priority treat- 
ment, and are often assigned for processing to the most experienced adjudi- 
cators. Examiners sense and resent the extra time it takes to locate and 
examine files in such cases and to write letters to the Congressman involved 

130 Experienced INS officers estimated that inquiries by phone or letter occurred in 
approximately 5-10% of all § 245 cases. Interviews with Vincent Doria, Chief, Sec. 245 
Unit, and with Charles Aronowitz, Immigration Examiner, NYC, Nov. 17, 1969. This 
estimate is fairly supported by a log, kept by the District Office, which reflects that 
during fiscal 1968, when the office adjudicated 7,507 applications for § 245 relief, 244 
congressionals were recorded. The log is kept by Travel Control and contains the follow- 
ing information: date of inquiry; name or code for inquirer; name of applicant; file 
number; type of appUcation; date file sent to District Director; and date file returned 
to Chief of Travel Control. The inquiries themselves, and the letters in response, are 
kept with the files involved in all § 245 cases; as to visa petitions, the practice is to keep 
all letters to Congressmen in a separate file. 


describing what has been done. The time thus expended causes delays in 
handling cases in which no inquiry is made. Moreover, regardless of the actual 
motives of inquiring Congressmen, examiners felt that congressional do influ- 
ence decisions on the merits. One particularly able administrator stated that 
he strains to grant applications with respect to which inquiries are made in 
order to avoid the trouble of justifying any delay or adverse action. One officer 
told of a case where a Congressman requested that an applicant be permitted 
to depart and reenter the country while his application was pending. The 
alien, he said, "went in and out of the country like a yo-yo. Anything is 
possible with congressional pressure." Another explained how a priest's appli- 
cation was processed with amazing speed because of a Congressman's request, 
and told of a case in which the sister-in-law of a foreign dictator's secretary 
had received a special privilege under the immigration laws due to congres- 
sional pressure, whereas a ditchdigger was denied relief for lack of influence. 
One examiner firmly stated that he gave no weight whatever to congressional 
requests, except to speed up decisions; but he also added that, because of this, 
he was sent very few congressionals to handle. 

The third Service policy which allows inconsistency in the eyes of ex- 
aminers is its position on the legitimacy of inconsistent results in like cases. 
Official policy is "that there be Service-wide uniformity in the interpretation 
and application of the laws, regulations and related administrative policies 
in the rendering of decisions."^^^ The BIA has, in addition, relied on the prin- 
ciple of uniformity to deny relief in cases where less compelling equities are 
present than in prior cases where relief was denied. ^^^ But the attitude which 
reaches adjudicators is reflected by the Board's express disavowal in at least 
one case of the binding nature of precedent,^^^ and is illustrated in a dramatic 
story which is adjudicative folklore in New York City.^^* 

131 Immigrants Inspectors Handbook 1-6, 7. 

132 E.g., Matter of C, 7 I. & N. Dec. 608 (1957). 

133 See Matter of Rubio-Vargas, 11 I. & N. Dec. 167 (1965); Matter of Vega, 11 I. 
&N. Dec. 337, 339 (1965). 

134 In defiance of the odds, two applications recently were filed in NYC which were, 
in all relevant respects, identical. Two Korean girls, who had been classmates and good 
friends in nursing school, left their native country at around the same time to work in 
Germany. Both received visitor's visas at Frankfurt to enter the United States. Both ob- 
tained jobs at the same hospital, specializing in psychiatric nursing, and both passed their 
permanent nursing exam with honors. Both filed extension-of-stay applications which 
reported falsely that they were unemployed. Both applied, and were concededly ehgible, 
for § 245 relief. Both were represented by the same lawyer, but their applications were 
processed by different adjudicators. One examiner granted relief. The other found three 
grounds for refusing to exercise discretion favorably: (1) mala fide non-immigrant be- 
cause of intent to work at time of entry; (2) violation of nonimmigrant status through 
working; and (3) false statements to the consul and to INS. The lawyer, an extremely 
able immigration practitioner, moved for reconsideration, which was denied because "the 
only substantial material in the motion was information to the effect that in a case with 


For evidence of inconsistency more objective than interviews and individual 
files we are able to turn to two sources: (1) figures collected by INS on the 
number of section 245 applications decided, granted and denied each fiscal 
year; and (2) figures we collected indicating the rate of reversal of decisions 
where no change had occurred in the record. The national data demonstrate 
wide disparities each year in the rate of denial, among INS regions. Table 4 
reflects that denial rates ranged in fiscal 1970 from 2.3 per cent of all com- 
pleted applications in the Southeast Region to 7.4 per cent in the Northeast 

Even wider disparities have appeared in prior years.^^^ These seemingly 
significant differences in rates of denial may conceivably be attributable to 
differences in the merits of cases filed in the regions, possibly on the hypothesis 
that less meritorious applications tend to be made in regions with large cities. 
One difficulty with this suggestion is that all the regions contain large cities, 

an almost identical fact pattern, an application for permanent residence was granted." 
Notice of Certification, File No. A18-179-241, at 2 (Dec. 4, 1969). "It is recognized," 
District Director Esperdy candidly stated, "that the discretion could have been exercised 
favorably or unfavorably depending on the point of view of the individual adjudicator. 
. . . What has hapf)ened is not improper, illogical or unexpected. . . . Each case must 
stand on its own merits," unless "discretion has been abused" or "a case on all fours 
leading to an opposite conclusion has been publicized." Id. at 2-3. This honest and ac- 
curate appraisal of discretionary power at INS should be contrasted with the Regional 
Commissioner's decision reversing denial of relief. Without even mentioning the case in 
which relief had been granted, or the interest in uniformity, the opinion simply (and er- 
roneously) recited that "the record here does not reveal sufficient grounds of excludability 
to warrant refusal of adjustment of status." In re Ja Park Cho, File No. A18-179-241 
(NYC), N.E. Region (Jan. 12, 1970). 

Section 245 Adjiidications 
Fiscal Years 1968 and 1969 by Region 

Region Completed Denied of Denials 

Northeast 12,935 1,223 9.4 

SE 6,746 120 1.8 

NW 6,384 221 3.5 

SW 9,870 855 8.7 

U.S. Totals 35,935 2,419 6.7 

Fiscal Year 1968 











Fiscal Year 1969 











Northeast 9,667 1,070 11.1 

SE 7,055 135 1.9 

NW 5,783 225 3.9 

SW 8,968 729 8.1 

U.S. Totak 31,473 2,159 6.9 


Section 245 Adjxjdications and Denial Rates for Fiscal Year 1970 by Region 




% Denied 


U.S. Totals 








and the differences in denial rates among the ten district offices handling the 
largest number of applications seem as significant as the differences among 
regions. As Table 5 reflects, denial rates in fiscal 1970 ranged among the 
cities from a low of 2.0 per cent in Cleveland to a high of 13.4 per cent in 
Boston. The range has been equally great in other years.^^^ These data tend to 


Section 245 Denial Rates 

Ten Busiest District Offices, 

Fiscal Years 1968 and 1969 

Fiscal Year 1968 






% Denied 


New York City 





Los Angeles 





San Francisco 




















Washington, D.C. 

















Fiscal Year 1969 







% Denied 


New York City 





Los Angeles 





San Francisco 




















Washington, D.C. 



















* The ranking of cities by the number of completed applications is the same for FY 1968 as for 
FY 1970. The relative ranking of these 10 cities for FY 1969 is somewhat different, and in that year 
a city not in the table (Baltimore) had 14 more completed applications than a city in the table 
(Detroit). However, to facilitate comparisons, the table for 1969 includes the same cities in the same order 
as the 1968 and 1970 tables. 




Section 24S Denial Rates for Ten Busiest* District Offices 

Fiscal Year 1970 

District Office 




% Denied 

1. New York City 





2. Los Angeles 





3. San Francisco 





4. Chicago 





5. Newark 





6. Boston 





7. Wash., D.C. 





8. Philadelphia, 





9. Detroit 





10. Cleveland 





"Busiest" here means handling the largest number of section 245 applications. 

show prima facie inconsistency among regions and districts. Even more com- 
pelling is Table 6, which shows the variations by year among regions and the 
ten busiest districts. Since no significant changes have occurred in the rules 
governing decisions between fiscal 1968 and 1970, one would expect the 
merits of cases handled within a given region, and in a specific district 
office, to have remained relatively constant. Yet the fluctuations in rates 
of denial are in many instances sharp, ranging up to 93 per cent from the 
regional or district mean. In New York City, for example, the rates of de- 
nial for fiscal years 1968 through 1970 were 12.6 per cent, 14.3 per cent and 
8.8 per cent, respectively. While in a very few districts the denial rate was 
relatively constant, this indicates only that the overall result of decisions by 
examiners in such districts was consistent, and not that decisions of individual 
examiners were consistent with decisions of other examiners. 

The other source of data on inconsistency is based on our assumption that 
reversals of denials, in the absence of any change in the record, reflect differ- 
ing views of the law. To the extent that the law is more flexible, or less limit- 
ing, we would expect a higher incidence of disagreement, to confirm our 
hypothesis concerning standards. The cases we examined were reviewed with 
sufficient frequency to allow for statistical evaluation at two stages — motions 
to reopen, decided by examiners, and deportation proceedings, decided by 
SIOs. At both stages the adjudicator was allowed to exercise discretion de 
novo, without according any more weight to the earlier judgment than he 
chose to give it. Our random sample of denials included 27 cases in which 
permanent residence was granted by examiners on motions to reopen. Of these, 
nine, or 33 per cent, were granted on the same record that had originally been 
before the examiner, thereby reflecting considerable evidence that examiners 
change their minds (six cases) or disagree with each other (three cases). An 
almost identical proportion of reversal on the same record (30 per cent) was 

















































































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observed in the cases in which aliens renewed their applications before SIOs, 
thereby reflecting considerable disagreement between examiners and SIOs. 
Most significant for our present purpose is the fact that a strikingly higher 
proportion of the observed disagreement and change of position is attributable 
to discretionary denials than to statutory denials. 

Inconsistency — Statutory vs. Discretionary Denials 

Motions to Reopen in Which 
Relief was Granted by Examiners 

Same Record Record 

Statutory* 22% 78% (18 cases) 

Discretionary** S0% 50% (22 cases) 

Base: (40 cases) 

Renewed Applications in Which 
Relief was Granted by SIOs 

Same Record 






( S cases) 
(38 cases) 

(43 cases) 

• The statutory cases used were all those denials in the random sample which were based in whole or 
in part on a statutory ground. 

** Because of the smaller number of discretionary denials in the random sample we used all the dis- 
cretionary denials collected. 

The results at both levels become even more definite when an adjustment 
is made for cases initially denied because the application was deemed aban- 
doned. Such cases have been counted as statutory denials. But they are dis- 
cretionary in that virtually no standards exist to guide their decision and 
they are reviewed under the arbitrary and capricious formula, which is 
reserved for discretionary action. When the few reversed denials based on 
the abandoned-application ground are counted as discretionary cases, the 
results at both levels are significant and similar. 


of Granted Applications 

Motions to Examiners 

Renewals Before SIOs 












* The discretionary denials here include cases denied on the basis of abandonment. 


The facts of the cases in which discretionary denials were reversed on the 
same record indicate that inconsistency is indeed prevalent. In the cases re- 
versed on motions to reopen, the results seem somewhat puzzling at first, since 
six out of nine of these cases were reversed by the same examiners who origi- 
nally decided them. Is it evidence of inconsistency that examiners changed 
their minds? The answer is yes, since they did so immediately after the 
district office received a "congressional," asking for reconsideration. Con- 
gressional intervention explains a large proportion of the reversals on motion 
to reopen. 

Some specific examples should illustrate. In case no. 098, a commodity 
broker was denied relief because, by his admission to the examiner, he had 
intended to settle in the United States but had applied for a visitor's visa be- 
cause he did not want to be delayed at the consulate in his native country. 
Indeed, he arranged for a job in America before leaving his native land, and 
he applied for a labor certification and permanent residence as soon as he 
arrived here. A clearer case of a mala fide nonimmigrant is difficult to imagine, 
and this one involved a false statement to the consulate as well. The ex- 
aminer denied relief on discretionary grounds. After the denial, however, a 
New York City Congressman wrote two letters urging reconsideration. The 
file was reopened and assigned to a different adjudicator, who granted the 
application on the same record. In case no. 112 the applicant was denied re- 
lief because he explicitly Hed to the consul concerning a debt which he had 
not paid at the time he entered this country. A Congressman urged recon- 
sideration and the case was reopened and reversed. Yet another case, no. 105, 
involved an alien who was reasonably found to have intended to seek employ- 
ment in this country despite having entered as a nonimmigrant. After a letter 
from a Congressman, the decision was reversed. In case no. 168, a young 
secretary admitted to the examiner that she had arranged for employment 
in the United States before leaving her native country and had untruthfully 
told the consulate that she intended to visit a friend here. The examiner 
denied relief. Thereafter, the District Director received a letter from a highly 
placed INS official enclosing another letter requesting that the alien be granted 
relief from an individual who was described as "a personal friend" of an 
even more highly placed INS official. The file was sent to a different adjudi- 
cator for reconsideration and the decision was reversed on the same record. 

While writers have frequently recognized that Congressmen and others 
might properly seek to influence "political" or policy decisions of agencies, 
or to speed up the disposition of cases and other applications, it is usually 
agreed that intervention with respect to the merits of adjudication is most 
nearly akin to attempts to influence the decisions of a court, and therefore 
improper. Of significance here, however, is the fact that not a single instance 
was found in this study of a successful intervention on the merits with re- 



spect to a denial based on a statutory ground. Apparently, the Service is un- 
willing to change such decisions and Congressmen will not request (or press 
for) changes in such cases. UnUke denials based on statutory grounds, 
discretionary decisions under section 245 are almost invariably "correct" 
regardless of their outcome. The adjudicators could initially have granted 
each of the applications and been acting well within their discretionary 
power. Aliens and their lawyers know this, and seem less willing to accept 
denials of these grounds. And the Service knows that reversal of such de- 
nials involves no violation of congressional directives. Indeed, it is probable 
that the ultimate result in each of the cases was more humane and sensible 
than the initial decision. The unfairness lies in the fact that most aliens do 
not obtain congressional help, and are thereby placed in a disadvantageous 

Reversals of discretionary denials on the same record by SIOs likewise 
reflect inconsistency, although here congressionals account for no part of the 
result. It is simply that SIOs, at least in New York City, have a radically 
different view on how discretion should properly be exercised. For example, 
in many cases SIOs granted relief despite adequately supported findings by 
examiners that the alien had evaded the visa-issuing process. Typical is case 
no. 073, involving a Philippine medical student who had become a doctor 
by the time she apphed for relief. She freely admitted having intended to 
work in America after she arrived, and said "I did not tell the consul because 
I knew I wouldn't receive the tourist visa." The examiner denied relief on 
the basis of discretion, since there were no equities in the applicant's behalf. 
The SIO reversed without any change in facts having occurred, and without 
opposition from the Service's trial attorney. Identical results were reached 
in many other cases, some with facts far less sympathetic than in our example. 
In two cases, SIOs granted relief after waivers of inadmissibility had been 
obtained by the aliens, indicating that the examiners involved had not only 
invoked discretionary power with respect to a visa fraud covered by the 
statute but had done so where circumstances warranted a waiver of the 
statutory prerequisite.^^"^ In some cases the SIO reversed even though the 
District Director strongly supported the examiner's decision. For example, 
case no. 158 involved a Chinese secretary who was found by the examiner 
to have intended to work when she obtained her visitor's visa. She did in 
fact begin working four days after her arrival. She had no family ties in 
America or other equities in her favor, so the examiner denied relief in a 
well reasoned and scholarly opinion. Her attorney complained, arguing that 
"thousands" of similar cases are granted. The District Director refused to 
acknowledge any inconsistency and reaffirmed the denial. The appUcation 

137 Case nos. 273, 245. 

493-361 O - 73 - 23 


was renewed before an SIO and granted without opposition from the trial 

Is the observed inconsistency between examiners and SIOs in exercising 
discretion peculiar to New York City or more widespread? The only data 
available to test this question are the number of renewed applications de- 
cided and denied by SIOs in all the district offices during the fiscal years 
1968-1970. The rates of denial sometimes vary here,^^^ but the overall na- 
tional rate of denial has been fairly constant: 35.5 per cent in fiscal 1968, 
32.8 per cent in 1969, and 34 per cent in 1970. The data on New York City 
indicate a somewhat lower rate of denial in 1968 (24.1 per cent) and in 1969 
(25.9 per cent). In fiscal 1970, SIOs granted 11 and denied none of the 
renewed applications, a departure from previous practice that is difficult to 
explain. If 1970 is disregarded as exceptional, it seems that SIOs in New York 
City are more liberal in granting rehef than those elsewhere. While these data 
seem ambiguous on the issue of New York City's typicality, the random 
sample data tend to indicate that the New York City practice is not out of 
line with nationwide practice. Of the 20 random sample cases in which SIO 
decisions were rendered, 13 or 65 per cent were granted, indicating a denial 
rate of about 35 per cent, which is very close to the national average. While 
20 cases is a small number, it seems easily an adequate sample since in fiscal 

Denial Rates of Renewed Section 245 Applications 
Decided by Special Inquiry Officers 

Fiscal Year 





% Denied 
















Fiscal Year 






% Denied 















Fiscal Year 






% Denied 

















* Numbers were too small to allow for comparison among districts. 


1968 and 1969 (the period during which the random sample cases were pro- 
cessed) SIO's in New York City decided only 29 and 27 renewed applications 
respectively. Therefore, if, as we may reasonably expect, the proportion of 
discretionary denials reversed on the same record is consistent nationally, 
it seems likely that examiners and SIOs are exercising discretion inconsis- 
tently in all regions. 

In contrast to the relative chaos associated with discretionary denials, 
decisions based on statutory grounds were seldom reversed on the same 
record, thereby reflecting an absence of congressional intervention and con- 
sistency between examiners and SIOs. The few reversals of statutory denials 
occurred with respect to grounds which lacked clear standards. Three of the 
denials reversed were based on the ground of failure to prosecute, concerning 
which there are virtually no standards. Two other cases involved illegal 
entries, and apparently were reversed by SIOs on the ground that the aliens 
deserved to be excused for their actions, as a matter of discretion. The 
Regional Commissioner reversed two cases on certification, but that device 
is used to handle novel and important questions of law. 

III. Administrative Review and Enforcement 

An alien may refuse to accept an adverse decision either by fighting it on 
the merits, through administrative review, or by seeking to prevent its en- 
forcement. Instability is caused in both the review and enforcement processes 
to the extent that challenges are successful. In analyzing the data gathered 
concerning acceptance and instability of decisions in both these processes, we 
have attempted to determine whether the results observed correlate with 
discretionary decisions, and the effects, if any, of the absence of representa- 

A. Administrative Review 

Denials of change-of-status applications may be reviewed in several 
ways.^^^ The disappointed applicant may move to reopen or to reconsider 
before "the authority which last made the decision in the case"^^** — here, the 
examiner, as delegate of the District Director.^*^ A motion to reopen must 

139 \^e frequently saw adjudicators ask their supervisors for advice and guidance 
before deciding a case. Counsel for applicants ako may, at the risk of offending an 
adjudicator, go "over the adjudicator's head" and ask the supervisor for help. Further, 
denials are reviewed by the supervisor before they are sent to the applicant. Decisions 
to "reverse" an adjudicator at this stage are not reflected in the data collected. 

14* Immigrant Inspectors Handbook 1-11. 

1*1 The applicant could also reapply on the basis of new facts or legal argument. In 
this study, reapplications — of which there were very few — are treated as motions to re- 
open or to reconsider. 


State "the new facts to be proved at the reopened proceeding . . . ," and a 
motion to reconsider must state "the reasons for reconsideration. . . ."^^^ 
Review is also possible by certification to the Regional Commissioner. District 
Directors "may certify their decisions . . . when the case involves an unusu- 
ally complex or novel question of law or fact."^*^ The alien may obtain 
certification through concurrence of either the District Director or the 
Regional Commissioner; he is given notice by mail and an opportunity to 
submit a brief. There is no appeal from the Regional Commissioner's decision 
on certification. 

The regulations provide, and aliens were once told, that "no appeal shall 
lie from the denial of [an] . . . apphcation by the district director. . . ."^** 
The knowing alien, however, is actually given more than an appeal, since 
denials are "without prejudice to the alien's right to renew his applica- 
tion . . ." in deportation proceedings. Adjustment of status is one of the forms 
of discretionary relief that aliens may seek from SIOs,^'*^ in a formal pro- 
ceeding with a lawyer-judge who has not been involved in the investigatory 
process, a formal record, and the right to appeal to the BIA and the courts.^*' 
The SIO is in no way bound by the examiner's decision, whether it is based 
on statutory grounds or on discretion. ^^^ 

The frequency with which each of these forms of review was invoked in 
the random sample cases is reported in Table 9. 

Forms of Administrative Review Invoked 


Form of Review Sought Random Sample 

Motion to Reopen Before Dist. Dir. 42 

Certification to Reg. Comm'r 2 

Renewed Application before SIO 28 

Appeal to BIA 4 

(Base: 105 cases) 

142 8 C.F.R. § 103.5 (1971). 

1*3 8 C.F.R. § 103.4 (1971). Certification appears generally to be used for the purpose 
intended. In case no. 099, for example, a sixty-year-old woman was denied relief as 
a Western Hemisphere native. She was born in Denmark, but had lived in the Dominican 
Republic since she was 10 years old. The Regional Commissioner reviewed on the ques- 
tion of law, and found the statutory preclusion inapplicable. 

144 8 C.F.R. § 245.2(a)(4) (1971). 

145 8 C.F.R. § 242.17(a) (1971). 

146 8 C.F.R. § 242.21 (1971). In addition, the SIO has authority to certify his decision 
to the BIA "when it involves an unusually complex or novel question of law or fact," 
8 C.F.R. § 242.8(a) (1971), and to grant reopening or reconsideration, 8 C.F.R. § 242.22 

147 8 C.F.R. § 242.8 (1971); Gordon & Rosenfield § 7.7e(l), at 7-67. 


1. Acceptance of decisions. Table 9 shows that a high proportion — 60 
per cent — of aliens denied relief challenge informal section 245 adjudications. 
This figure actually understates the number of aliens who did not accept the 
judgments in their cases, since mtcny who had not sought administrative 
review sought relief later at the enforcement stage. A maximum estimate of 
acceptance can be derived from the number of aliens denied relief who de- 
parted voluntarily before a deportation order was served: 21 per cent of the 
random sample. Even this figure overstates the extent to which decisions are 
accepted, since 68 per cent (IS of 22) of the ahens from the random .sample 
who departed voluntarily were unrepresented and many of these probably 
acted out of ignorance or fear rather than acquiescence. The rate of challenge 
might exceed 90 per cent were aliens accurately informed of their oppor- 

An alien's decision to challenge the denial of his application does not 
necessarily reflect a conviction on his part that the denial was wrong or 
unfair. He may challenge a denial even though he feels that the decision is 
correct and will be adhered to by INS, because he wishes to delay his de- 
portation or voluntary departure. Given these possible motivations, even a 
90 per cent figure for nonacceptance may be a tolerable price to pay for 
leaving informal an adjudication which effectively disposes of about 80 per 
cent of all the applications filed (through initial grants). On the other hand, 
widespread action by aliens to secure delays of enforcement may reflect too 
lax a system for implementing decisions. And the possibility remains that at 
least a significant part of the rate of nonacceptance results from a genuine 
conviction that the decisions are wrong or unfair. 

The latter possibilities find support in the fact that aliens denied relief on 
statutory grounds seem to seek administrative review before SIOs less fre- 
quently than those denied relief on discretionary grounds. Motions to reopen 
or reconsider were made in 40 per cent of the random sample statutory 
denials and in 31 per cent of the discretionary denials, indicating roughly 
equal use of that device. On the other hand, renewed applications before SIOs 
were made in 23 per cent of the statutory denials as compared to 46 per cent 
of the discretionary denials. Perhaps most significant is the fact that twice as 
high a proportion of aliens denied rehef on statutory grounds (26 per cent) 
depart voluntarily as do aliens denied relief on discretionary grounds (13 
per cent). This difference is not explained, moreover, by the slightly less 
frequent use of lawyers by aliens denied relief on statutory grounds. Only 29 
per cent of those denied relief on statutory grounds were unrepresented 
compared to 25 per cent of those denied relief on discretionary grounds, and of 
such aliens who voluntarily departed 60 per cent and 50 per cent respectively 
were unrepresented. 

One possible reason for the greater refusal of aliens denied relief on dis- 


cretionary grounds to accept decisions than aliens denied relief on statutory 
grounds is that the latter may feel especially unfairly treated in light of their 
conceded eligibility to become permanent residents. While disparities in the 
"reversal" rate between such grounds have not heretofore been published, 
experienced counsel are undoubtedly aware that SIOs tend to agree less with 
some types of discretionary denials than they do with statutory denials. The 
other possible explanation concerns the enforcement process. Aliens denied 
relief on statutory grounds apparently have their best hope of obtaining relief 
(in the absence of changed circumstances) in delaying or halting enforce- 
ment. The devices available for this purpose (discussed below) are less known 
and more difficult to utilize than the methods for obtaining review. It seems 
possible that many attorneys are unaware of, or unable to manipulate, devices 
available to aliens at the enforcement stage, and therefore erroneously advise 
their clients denied rehef on statutory grounds to depart voluntarily rather 
than to continue seeking relief. 

2. Stability of denials. Section 245 denials seem extraordinarily unstable. 
Aliens not only tend to challenge denials of relief in a high proportion of 
cases; they are also very often successful, as Table 10 reflects. Of all the 

Results of Aomhtistrative Review of Section 245 Denials 

Percent of 
Result Random Sample 

1. Permanent Residence Granted 40 

2. Departed before OSC* 21 

3. Departed after OSC* 4 

4. Deported 1 

5. Pending 34 

(Base: 105 cases) 

* Order to show cause why the alien should not be deported. 

aliens denied relief in our random sample, 40 per cent had obtained perma- 
nent residence without leaving the United States at the time we collected 
the data. About 25 per cent had departed voluntarily, either before or after 
an SIO hearing; only one per cent had been deported. The remaining 34 
per cent of the cases were still pending at the time we collected the data, 
although more than a year had elapsed since the initial denial in all the cases 

Table 10 greatly understates the extent of instability. Eliminating from 
our calculations those cases in which no challenge was made yields a base of 
83 cases, in 42 (or 51 per cent) of which aliens had obtained permanent 
residence at the time the data were collected, and 36 (43 per cent) of which 
were pending. Finally, in light of our findings concerning pending cases, it is 



inaccurate to assume that the results in even a large proportion of these cases 
can be considered stable; in my judgment, most will be overturned. If the 
pending cases are discounted entirely, we obtain a "reversal" or instability 
rate in excess of 90 per cent in all final cases in which challenges were made. 
We have seen that greater inconsistency on the merits of decision seems to 
be present in connection with discretionary denials than with statutory 
denials. A similar correlation is found between discretionary denials and 
instability. Table 11 shows that whereas permanent residence had been ob- 

Results of Administrative Review by Type of Groxhstd of Initial Decision 















(69 cases) 

(105 cases) 

Permanent Residence Granted 
Departed Before OSC 
Departed After OSC 

tained in 36 per cent of the statutory denials, such relief had been secured in 
53 per cent of the discretionary denials. 

One possible argument against a finding that discretion and instability are 
related is implicit in the higher proportion of aliens denied rehef on statutory 
grounds that departed the United States before a deportation order was 
served (26 per cent), compared to aliens denied relief on discretionary bases 
(14 per cent). If it is not proper to count such departures in determining 
stability, then the percentage of aliens denied relief on statutory grounds who 
obtain permanent residence is much lower. But such counting is proper: aliens 
who depart voluntarily without challenging denials thereby accept the judg- 
ments in their cases, and from that acceptance an expectation of stabiUty 
may be inferred. 

3. Effect of representation. The absence, discussed earlier, of any evi- 
dence that being imrepresented by counsel disadvantages alien applicants in 
any verifiable way in obtaining a favorable decision at the informal adjudica- 
tion contrasts strikingly with strong evidence of prejudice in the post- 
adjudication process. Table 12 shows that unrepresented aUens obtained 
permanent residence far less frequently (21 per cent) than did represented 
aliens (47 per cent). The principal reason for this result seems obvious from 
the table itself: a much higher proportion of unrepresented aliens departed 
voluntarily before a deportation hearing (54 per cent) than represented aliens 
(nine per cent) . When the cases in which aliens departed voluntarily without 



Effect of Representation on Subsequent Disposition of Section 245 Denials 

Ultimate Disposition 




Permanent residence granted 
Departed before OSC 
Departed after OSC 
Number of cases 



(Because of rounding, percentages do not add to 100) 







a formal hearing are subtracted from the computations, the random sample 
data (Table 13) show about the same proportion of cases in which perma- 
nent residence is obtained. The number of cases in which aliens are both 
unrepresented and have not departed voluntarily before an SIO hearing is 
small, however, and this makes any conclusion on this point somewhat tenta- 
tive. And the very skimpy evidence we have about the pending cases may 
indicate that unrepresented aliens fare somewhat less well in winning mo- 
tions to reopen and renewed applications before SIOs. But it seems clear 
that most of the disparity in the likelihood of represented and unrepresented 
aliens' obtaining rehef after initial denials is explained by the relatively high 
rate of voluntary departure of unrepresented aliens. 

Why is the absence of counsel so critical immediately after an initial 
denial? The answer seems related to a form sent by the Service to each alien 
whose file was studied, informing him that his application was denied, and 
adding in unqualified terms: "There is no appeal from this order." Where 
voluntary departure was authorized, moreover, which was true in almost all 
cases, the alien was told to leave the country before a certain date (usually 
30 days from the date of denial), or face possible arrest and deportation. 

This form concealed a state of affairs that any experienced advocate would 
bring to a client's attention. While it is technically true that no "appeal" lies 
from a denial, there are numerous other avenues of relief. An alien may, for 


Effect of Representation on Subsequent Disposition of Section 245 

Denials When Voluntary Departures Disregarded 

Ultimate Disposition 




Voluntary residence obtained 
Voluntary departure after OSC 







example: (1) obtain extensions of the voluntary departure deadline; (2) re- 
apply for relief or move to reopen; (3) urge the District Director to certify 
the case for limited review by the Regional Commissioner; (4) obtain a de 
novo hearing before an SIO, from the denial of which an appeal will lie to 
the BIA and the federal courts; (5) seek any of several forms of informal 
suspension of enforcement discussed below; and (6) secure the introduction 
of a private bill which automatically stays deportation for about one year. 

Of course, it does not follow that counsel is required at the informal stage. 
Full and accurate disclosure by INS would be cheaper and might eliminate 
the need for counselling that we have found. Steps in that direction have now 
been taken. When the deficiencies of the denial form were called to the atten- 
tion of the INS, the form was promptly revised. It now provides, in relevant 
part: "You are granted to [date] to effect your departure from the United 
States voluntarily, without the institution of proceedings to enforce your 
departure. ... If you fail to depart ... by the date specified, proceedings 
will be instituted to enforce your departure. You may renew your application 
for status as a permanent resident during such proceedings."^^^ This revised 
form could be yet less threatening, and more helpful as to the means available 
to the alien for obtaining relief from the denial of his application. It does, 
however, negate the false notion that all chance for adjustment has now 

Perhaps those aliens who depart voluntarily after notice of denial do so 
because their cases lack merit. But the evidence we have leads us to doubt 
this possibility. We are able to tell, first, that aliens denied relief on discre- 
tionary grounds obtained permanent residence with considerably greater 
frequency without leaving the United States (53 per cent) than aliens denied 
relief on statutory grounds (37 per cent), whereas if voluntary departure 
were related to the merits we would expect to find that aliens denied relief 
on statutory grounds left voluntarily in significantly more cases than aliens 
suffering discretionary denials. Table 14 indicates, moreover, that the absence 
of representation seems to correlate equally in both types of cases with 
voluntary departure prior to the SIO hearing. 

B. Enforcement 

Enforcement is a critically important aspect of any adjudicatory system. 
Prompt, effective enforcement lends credibility, secures voluntary coopera- 
tion from affected persons, and thereby often obviates the need to enforce 
many decisions. In immigration cases the process of securing compliance with 
decisions is slow and usually results in the alien's avoiding departure. Partly 
this is due to "dilatory tactics" by aliens, which in deportation cases "are the 

148 Form 1-291 (July 10, 1970). 



Effect of Representation on Subsequent Disposition of Section 245 Deniats 

Deniak Based on 

Denials Based on 

Statutory Grounds 






1. Permanent 







2. Departure 

before SIO 






3. Departure 

after SIO 






4. Pending 





S. Other 









(Because of rounding, percentages do not add to 100. Four 

cases denied 

on both statutory 

and discretionary grounds have been excluded.) 

rule rather than the exception. . . ."^** But adequate tools exist to combat 
dilatory tactics. The Service can proceed to a deportation hearing with about 
seven days' notice after a change-of-status application is denied.^^" Appar- 
ently, in about 80 per cent of such hearings, deportability is conceded. The 
fact that an alien may have pending an application for a waiver of some 
statutory provision or for some other form of administrative relief gives him 
no right to a delay in the adjudication of his deportability.^^^ Furthermore, 
dilatory motions to reconsider decisions may be denied peremptorily,^ ^^ and 
courts frequently have refused to consider equities developed through 
delay. ^^ 

One can hardly resist the conclusion after examining the enforcement 
process and its results that delay and the frequent success of aliens in avoid- 
ing departure stem primarily from the Service's compassionate (and seem- 

149 Yiu Fong Cheung v. INS, 418 F.2d 460, 465 (D.C. Cir. 1969) (Burger, J., dissenting). 

150 Usually, at least, that much notice is given, though a shorter period may be set. 
Gordon & Rosenfield § 5.3c. 

151 See Manantan v. INS, 425 F.2d 693, 694 (7th Cir. 1970) (application pending for 
waiver of two-year foreign residence requirement), and cases cited therein; United States 
ex rel. Vermiglio v. Butterfield, 223 F.2d 804 (6th Cir. 1955) (application for pardon 
pending) . 

152 See Gordon & Rosenfield § 5.13a, at 5-112; Wolf v. Boyd, 238 F.2d 249 (9th Cir. 
1956). Compare Pignatello v. Attorney General, 350 F.2d 719 (2d Cir. 1965) (must re- 
open deportation case to consider application for discretionary relief when petitioner 
will be prima facie eligible for it if his claim to citizenship fails). 

153 £.g., Mealha v. Shaughnessy, 219 F.2d 600 (2d Cu:. 1955). 


ingly sensible) administration of section 245. We can begin to understand 
this conclusion by examining the legal framework that Congress provided 
for suspending enforcement of the relevant immigration laws, and then com- 
paring what the Service has done in this area — often with the knowledge and 
cooperation of many Congressmen — to provide devices for easing the pain of 
prompt enforcement. 

1. Statutory devices far suspending enforcement. There are two impor- 
tant statutory means for suspending enforcement of deportation against aliens 
denied change-of-status relief — suspension of deportation and voluntary 

Suspension of deportation. Section 244 of the I. & N. Act gives the At- 
torney General "discretion" to recommend suspension of deportation of aliens 
who meet certain conditions. Any aUen deportable for reasons other than the 
provisions relating to subversives, criminals, immoral acts, narcotics violations 
or alien registration laws must, to be eligible for relief, demonstrate: (1) 
physical presence in the United States for a continuous period of seven years 
inmiediately preceding application for relief; (2) "good moral character" 
during the entire, seven-year period; and (3) that deportation would result 
in "extreme hardship" to the alien or to his United States citizen or perma- 
nent resident spouse, parent or child. Aliens deportable for subversive and 
other activities must, to be eligible, prove ten years of continuous physical 
presence, "good moral character" during that period, and that their deporta- 
tion would cause "exceptional and extremely unusual hardship." Further, the 
following classes of aliens are barred from obtaining suspension: (1) crew- 
men entering the United States after June 30, 1964; (2) exchange visitors; 
and, generally, (3) natives of countries contiguous to the United States and 
of certain adjacent islands.-^^* Finally, while applications for suspension are 
made at deportation hearings, and adjudicated by SIOs,^^^ approval must in 
addition be obtained from Congress. 

The Attorney General prepares a list of all approved applications for sus- 
pension, and submits it to the appropriate congressional committee along with 
a detailed statement of the facts and pertinent provisions of law in each 
case.^^* As to those ahens who must demonstrate seven years' continuous 
physical presence, the Attorney General's recommendations are automatically 
approved if neither House has indicated disapproval by the end of the second 
session during which the issue has been before Congress. As to those aliens 
who must demonstrate ten years' continuous physical presence and "excep- 

154 8 U.S.C. §§ 1254(a)(1), (a)(2), & (f) (1970). 

155 8 C.F.R. § 242.17(a) (1971). Deniab of relief are appealable to the BIA. 8 C.F.R. 
§ 242.21 (1971). 

156 8 U.S.C. § 12S4(c)(l) (1970). 


tional and extremely unusual hardship," however, Congress must pass a 
concurrent resolution approving suspension before the end of the session 
following the one in which the case was submitted, or else suspension is 
denied. ^^^ When approval is granted, the Attorney General cancels the de- 
portation proceedings and grants permanent residence as of the cancellation 

The gauntlet of restrictions that aliens are forced to run to obtain suspen- 
sion has deterred aliens from seeking such relief. In none of the random 
sample cases studied was suspension even recommended by an SIO; recom- 
mendations were made in only three of 135 cases in the special collection of 
discretionary denials. The Service-wide figures for grants of suspension are 
similarly small — in fiscal 1969, for example, only 418 aliens obtained this 
form of reUef.^^^ Finally, Congress takes httle interest in the suspension 
appUcations painstakingly compiled and submitted by the Attorney Gen- 
eral,^^" and the process of legislative review has recently been rendered 
meaningless by two Congressmen who have effectively blocked any affirma- 
tive action.^^^ 

167 8 U.S.C. § 12S4(c)(2) & (c)(3) (1970). 

158 8 U.S.C. § 12S4(d) (1970). 

159 1959 INS Ann. Rep., table 6B (1970). Indications of a recent increase in applications 
for suspension in NYC may be due in part to the Act of 1965, P.L. 89-236, § 12, 79 Stat, 
918, whicli amended I. & N. Act, § 244(f) to include crewmen; to the Chinese Confes- 
sion Program which, during its existence, enabled Chinese aliens to confess to false 
parentage claims and obtain in exchange amnesty and the Service's cooperation in secur- 
ing suspension of deportation ; and the use of suspension appUcations to delay deporta- 
tion until a visa becomes available either in the United States or overseas. Interview with 
William FUegelman, Esq., SIO, NYC, July 31, 1970. 

160 Until recently, these matters were voted on as part of the "consent" calendar, 
without debate. The judiciary committees of the Senate and House have taken a more 
intense interest in these applications, but their aims appear divergent. In the Senate, 
appUcations are reviewed, according to one experienced observer, in order to determine 
whether INS has compUed with the legal prerequisites; this committee tries not to second- 
guess the Service in its exercise of discretion. The House demonstrates much less "legisla- 
tive restraint," and frequently recommends that appUcations supported by the Attorney 
General be rejected by Congress. Statement of Donald G. Benn, Assoc. Counsel, House 
Coram, on the Judiciary, at Conf. of the Assoc, of Immigration & Naturalization Lawyers, 
Miami, Fla. May 23, 1970. 

161 The usual procedure for legislative review in the House is for the Subcommittee 
on Immigration to review suspension recommendations, and then to have placed on the 
"private calendar" of the House a series of proposals for approval or disapproval of 
appUcations requiring affirmative action. In the last three Congresses, however, two 
Representatives, Durward G. Hall of Missouri and H.R. Gross of Iowa, have refused to 
permit appUcations for suspension to be approved or disapproved on the private calendar. 
The private calendar must be passed without opposition, and because of the relative 
unimportance of these matters (especially toward the end of a session when votes on 
suspensions are normally taken), the Chairman of the House Subcommittee has chosen 
not to place the recommendations on the regular calendar for action. Telephone interview 
with Donald G. Benn, Esq., Wash., D.C., July 1970. As a result, appUcations requiring 


Voluntary departure. Congress has authorized the Attorney General "in 
his discretion" to allow certain aliens "under deportation proceedings" to 
depart voluntarily at their own expense in lieu of deportation. Aliens deport- 
able for a variety of criminal and subversive activities are ineligible for this 
form of relief unless they meet the prerequisites for suspension of deporta- 
tion.^^^ Any other alien subject to deportation is eligible if "he is, and has 
been, a person of good moral character for at least five years preceding his 
application for voluntary departure. . . ."^^^ None of these prerequisites 
applies, however, to aliens who are informally denied change-of-status relief; 
with minor exceptions, the Service can allow any alien who is not under 
deportation proceedings to depart voluntarily.^^^ 

Voluntary departure is almost invariably granted to aliens informally 
denied section 245 rehef, usually for a period of 30 days. In a handful of the 
cases we studied the alien was not told he could depart voluntarily, appar- 
ently because the Service wanted to institute deportation proceedings. Volun- 
tary departure is also usually available after an order to show cause has been 
served. Even after a finding of deportability is made, and any renewed 
application for permanent residence denied, SIOs almost always grant volun- 
tary departure ; ^•'^ of the 21 ahens denied relief in the random sample cases 
which resulted in findings of deportability, 19 were granted voluntary de- 

The Service is liberal in granting voluntary departure because deporting 
an alien is a costly and time-consuming enterprise, even if efficiently executed. 
Voluntary departure is also beneficial to the alien concerned. When an alien 
is deported, his chances of becoming an immigrant are diminished, because 
the consular process is less subject to administrative and judicial control, and 
because deported aliens may reenter the United States only with the special 
permission of the Attorney General.^^^ Finally, one might expect aUens 

affirmative action for approval have been automatically disapproved in the last three 
Congresses, and applications requiring no affirmative action have been approved, despite 
frequent Subcommittee recommendations that certain applications be affirmatively ap- 
proved or disapproved. In the last few years, for example, the House Committee recom- 
mended affirmative disapproval in about 62 of 433 cases in which the Attorney General 
had recommended suspension be granted. Congress' failure to act in effect overruled the 
Committee's recommendations. 

162 The categories of aliens ineligible for rehef are set forth in 8 U.S.C. § 1254(e) (1970). 

163 8 U.S.C. § 12S4(e) (1970). See generally Gordon & Rosenfield § 7.2. 

164 See 8 C.F.R. §§ 242.5(a) & 242.7 (1971). 

165 Until 1968, SIOs could only authorize voluntary departure. District Directors had 
exclusive authority to fix the time for and conditions of departure, and to rule on re- 
quests for extensions. In 1968, 8 C.F.R. § 244.1 was amended to authorize SIOs to fix the 
time and conditions for departure, and to authorize an extension, though not to fix the 
time and conditions of an extension. See decision of BIA, 3/24/70, reported as File: AlS- 
750-231, 38 U.S.L.W. 2560 (April 21, 1970). 

166 1. & N. Act, § 212(a) (16), 8 U.S.C. § 1182(a) (16) (1970). 


promptly to take advantage of offers to depart voluntarily because it is ■well 
established that the courts generally will not disturb the "highly discre- 
tionary" judgment of the Service that an alien who fails to depart voluntarily 
within the time afforded him should be extended no further opportunity to 
do so.^^^ It had been Service policy, during the time the cases we examined 
were decided, to renew grants of voluntary departure to aliens who demon- 
strated their good faith intention to depart immediately upon renewal of the 
grant, but this policy was modified in July 1969, so as to caution District 
Directors to refuse extensions "to any alien who has remained in the United 
States for an extended period of time by means of obviously dilatory actions 
in Courts or elsewhere. "^^® 

Despite the Service's generosity in awarding voluntary departure, and its 
theoretical attractiveness to aliens, it is seldom actually used. Of the ah ens 
denied relief by examiners in our random sample, only 21 per cent departed 
voluntarily before an OSC was served, and 68 per cent of those were unrepre- 
sented. Of the 19 aliens afforded voluntary departure by SIOs, only four 
took advantage of the opportunity. Moreover, at both levels, though more so 
at the informal stage, extensions were liberally granted, either in the hope that 
the aliens involved would eventually leave without any need for a deportation 
proceeding, or for humanitarian reasons. The failure of voluntary departure 
to cause aliens to leave is due in large part to the Service's use of devices 
discussed below to suspend enforcement. It is also due, however, to the ineffec- 
tive enforcement system that exists, at least in New York City, to insure that 
aliens granted voluntary departure in fact have left, and to deport those who 
unlawfully remain. 

The process for checking on voluntary departures begins, in New York 
City, soon after an application is denied. The case is referred to the Deporta- 
tion Section, and if voluntary departure is granted, the applicant's name is 
noted on a card in Docket Control, indicating the date by which the alien 
must depart. Aliens are usually given 30 days in which to depart, so nothing 
is done for at least one month. If no extension has been granted, the next step 
is to verify the aUen's departure. This is no small task for the Deportation 
Section's staff of 13 officers (including three supervisory persons): it is 
charged with the duty of tracking down aliens and enforcing decisions in 

167 £.1-., Lau Wun Man v. INS, 426 F.2d 689, 690 (3d Cir. 1970). Discretion is broad 
in other respects as well. E.g., Bartsch v. Watkins, 175 F.2d 245 (2d Cir. 1949) (time 
limit discretionary) ; United States ex rel. Ciannamea v. Neelly 202 F.2d 289 (7th Cir. 
1953) (A.G. may consider "best interests of the United States"). 

168 Operations Instructions § 243.1(a) (July 30, 1969). See the excellent discussion in 
Fan Wan Keung v. INS, 434 F.2d 301 (2d Cir. 1970). The regulation provides that, except 
in certain classes of aliens discussed below, the usual time limit shall be no more than 30 
days, "and an extension . . . shall not be authorized except under meritorious circum- 
stances." Operations Instructions § 242.10(b) (June 18, 1969). 


about 56,000 cases each year.^^^ The Service therefore attempts to check on 
departure automatically. It issues to each alien with the denial of his ap- 
plication a Form 1-94, which either the alien or the carrier (airline, ship, etc.) 
is required to submit to the Service at, or soon after, the time of departure. 

When everything goes according to plan, the Form 1-94 is received by the 
district office and filed about two months after the alien's departure. In New 
York City, however, docket cards are not reviewed for verification until some 
three to four months past the date on which the Form 1-94 would in the 
normal course have been received from carriers. Indeed, personnel shortages 
have sometimes made reviews impossible for as long as six months past the 
time carrier verification would be expected. Consequently, even as to aliens 
who do depart as ordered, and as to whom carrier verifications are duly filed, 
verification of departure takes from six to nine months after the initial 

When departure of an alien who has not been through a deportation hear- 
ing is unverified, the case is referred by Docket Control to Investigation. 
A notice is sent to the alien asking him to appear at the District Office, and 
if he does appear he is served with an OSC setting a date for a deportation 
hearing. If the alien does not appear, the OSC is sent to him by mail. If the 
alien is located the deportation hearing is set down within about ten days of 
service of the OSC if a trial attorney is unnecessary to present the govern- 
ment's case. If a trial attorney is needed, the hearing is still usually held 
within one month. Of course, extensions are often requested and usually 
granted. But there is little backlog on the SIO hearing calendar. Finally, the 
SIO usually decides the case on the day of the hearing; if the alien is found 
deportable, he is generally given another voluntary departure date 30 to 60 
days thence. 

The weaknesses of this system of enforcement are patent, even assuming 
obedient, passive subjects. Aliens generally fight the system, and most of them 
win. Often there is no need even to fight. An alien has a good chance of 
spending months, perhaps even years, in the United States if he simply waits 
for the Service to act. In several cases, we found a total lack of follow-up. In 
case no. 014, for example, the alien was denied relief for unlawful employ- 
ment, and granted 30 days in which to depart. That was in October 1967. 
As of July 1970, nothing had been done. According to the file, no extension 
was sought or granted. Several such cases were found.^'^ Some of these 

169 These figures were supplied by Mr. Harold Grace, Ass't Dist. Dir. for Deportation, 
NYC, July 16, 1971. In FY 1971, the section handled 56,282 cases. 

170 This description is based on a series of interviews with INS personnel, especially 
Deportation Officer Mapel, NYC, April 1970. 

171 Accord, case no. 021 (file examined March 1970; nothing since denial in August 
1968); case no. 022 (file examined July 1970; nothing done since April 1968, despite 


"overlooked" cases involved patent frauds.-^'^^ In case no. 138, a Muslim alien 
from Lebanon claimed immediate-relative status on the basis of his marriage 
to a Cathohc, Cuban woman, 24 years older than he. An investigation by 
INS revealed that the ahen and his Cuban wife were living separately, and 
that she intended to divorce him. The consul in Lebanon supplied evidence 
that the alien intended to get permanent residence, divorce his Cuban wife, 
and then send for his wife and children in Lebanon, where they were living 
with the alien's parents. Rehef was denied on February 27, 1968, and volun- 
tary departure granted for 30 days. Extensions were requested and granted 
until July 31, 1968. An attempt to verify departure failed as of January 7, 
1969, and no action was taken between then and July 1970, the last time we 
checked this and other similar files. These instances of nonenforcement help 
explain why INS orders lack credibility. 

2. Administrative devices for suspending enforcement. The discussion 
above demonstrates that Congress has been miserly in providing INS with 
the tools for alleviating hardship in the application of the immigration laws 
and for enforcing them where appropriate. While voluntary departure might 
assist the Service in enforcing decisions, it is clear that the New York office 
is too understaffed to make its threats credible. The Service's response has 
been to create a complex, highly discretionary system for informally suspend- 
ing enforcement. Some form of informal suspension was used in 16 per cent 
of the random sample cases. 

Nonpriority cases. The best established of the devices used to stay en- 
forcement is the "nonpriority" program. Almost any officer of the Service can 
recommend nonpriority treatment to a case, including an Immigration Exam- 
iner; usually, however, such recommendations are made by officers in the 
investigation and deportation sections. If a change-of-status application or 
immigrant visa petition is involved, the officer may recommend nonpriority 
status only after ruHng on the application's merits.^^^ A recommendation is 
appropriate when the officer concludes that "compelling humanitarian fac- 
tors" dictate that no action be taken to enforce the alien's departure.^^* A 

attorney's letters in May 1968 and July 1970 claiming not to have received decision) ; 
case no. 106 (file examined December 1969; nothing in file since February 1968); case 
no. 109 (file examined April 1970; nothing in file since denial in January 1968) ; case no. 
272 (file examined June 1970; nothing since denial in May 1968). 

^"^^ E.g., case no. 101 (marriage fraud; nothing done after expiration of grant of 
voluntary departure in January 1968; file examined July 1970). 

173 See Operations Instructions § 243.3(a) (July 30, 1969). Much of the information 
on this program's operation was obtained from District Director Sol Marks, NYC, 
February 25, 1970. 

i'^4 Memorandum from Assoc. Comm'r Operations, "Nonpriority Program," Nov. IS, 
1968. The relevant instruction seems somewhat more flexible, providing that "in every 
case involving appealing humanitarian factors," appropriate steps should be taken to 
avoid public ridicule. Operations Instructions § 103.1(a) (!)(") (Feb. 23, 1967). 


printed form must be prepared, setting forth the alien's present status, avail- 
ability of administrative reUef, grounds of deportability and other factors 
potentially relevant to the appropriateness of such relief. The District Director 
and the Regional Commissioner must both review and approve each such 
recommendation. Nonpriority status may be granted, however, only by the 
Central Office Committee on Nonpriority Cases; and once the Committee 
grants such status, only it may finally authorize removal of a case from 
nonpriority. The District Director must maintain a two-year call-up on all 
nonpriority cases, and must report to the Committee any changes in circum- 
stances which may be relevant. 

There are few explicit indications of the types of cases in which nonpriority 
status is granted. Advanced age is undoubtedly one ground for granting 
relief. The Operations Instructions stress the importance of protecting the 
government from "public ridicule,"^'^^ a questionable standard for doing 
equity. Other factors relevant to the issue are reflected on the required form: 
grounds of deportabihty; extent of residence in the United States; physical or 
mental condition requiring treatment here; family situation, and ties with 
Americans; "effect of expulsion"; criminal record; and subversive activities 
or affiliations.-^^^ Other examples of cases in which relief is recommended and 
granted are: children; veterans of the United States armed forces who are 
deportable and ineligible for permanent residence; refugees who are institu- 
tionalized for mental trouble and therefore deportable. "It's this sort of thing 
that's kept us out of the newspapers," said Sol Marks, District Director of 
the New York office. "In the old days we regarded Congress' rules as a 
mandate. We felt we had no waiver power." Now, he said "we do this with 
the explicit or implicit approval of congressional watchdog committees." 
The courts have held that the power to withhold enforcement for "humani- 
tarian reasons" is in the District Director's discretion.^^'^ 

A rough check of the control cards for nonpriority cases indicated that 
there were approximately 600 pending cases in the NYC office in February 
1970.^'^^ These have collected over a period of many years, however. We en- 
countered very few such cases in our study. While many cases were found 
that appeared to be appropriate subjects for nonpriority treatment, Service 
adjudicators and other line personnel chose instead to deal with the cases 
much less formally than the nonpriority system allows. 

"Special Projects." If a case presents compelling humanitarian factors, 
or is "sensitive" in that deportation might subject the Service to adverse 

175 Ibid. 

176 Form G-132, Nonpriority Case Summary (Rev. Feb. 7, 1963). 

177 See Gordon & Rosenfield § S.3e. 

178 The count is based on a procedure followed at the district office of pushing the index 
cards tightly together and measuring them, counting 100 cards per inch. 

493-361 O - 73 - 24 


publicity, an officer working in NYC can save himself considerable trouble by 
placing the case in "Special Projects," instead of recommending nonpriority 
treatment. No form need be completed, and review by the Regional Commis- 
sioner and Central Office is not sought. An officer, usually with the approval 
of his supervisor, completes a docket card for deportation control, but marks 
it "Special Projects." This means that no deportation order is issued in the 
case, which is then handled by Deportation Control, usually on a six-month 
call-up basis. Special Project cases supposedly result in suspension of en- 
forcement for a relatively shorter time period than nonpriority cases. This 
may be true in general. But in the Special Project cases we studied suspen- 
sion of enforcement was open-ended, indicating that the device is often used 
as an informal substitute for the nonpriority program.-^'^® 

A sampling of deportation-control docket cards, taken by a Service Officer, 
indicated that about 140 cases were in Special Projects in New York City as 
of February 1970.^^^ Of the cases selected for this study, however, many 
more received Special Project than nonpriority treatment. The cases placed 
in Special Projects usually involved aliens of advanced age,^^^ One excep- 
tion was a young secretary who worked for the United Nations; at the 
request of a Congressman and of U. N. officials, the case was placed on a six- 
month call-up, under which the secretary, though deportable, was allowed to 
remain here so long as she continued to work for the U. N.^^^ One of the 
cases reflected the Service's concern to avoid adverse comment. The alien 
was a 70-year old woman, a native of France, but resident of a South Amer- 
ican country. She was ineligible for permanent residence and had no rela- 
tives or other ties in the United States. The adjudicator recommended 
suspension of enforcement in this "sensitive" case, noting that the alien >""^ 
risked her life for the Allies in France during the Nazi occupation.^^^ 

Voluntary departure. While Special Project treatment is relatively easy to 
invoke — certainly less formal than the nonpriority system — the most com- 
monly used method of suspending enforcement, and the least formal, is to 
grant voluntary departure, repeatedly if necessary, for long intervals. 

Many of the situations in which voluntary departure is used to stay de- 
portation are spelled out in government regulations and memoranda. The 
controlling Operations Instruction sets out eight categories of aliens who 
should "normally" be granted voluntary departure, including any alien 

179 One experienced SIO referred to the Special Project device as "in effect" the same 
as nonpriority treatment. Interview with Francis Lyons, Esq., NYC, June 17, 1970. 

180 The sample consisted of a batch of about 20% of all docket cards, according to the 
officer who did the counting. 

181 Case nos. 226, 291. 

182 Case no. 067. 

183 Case no. 226. 


whose application for an extension of stay is denied, or who voluntarily 
surrenders himself to the Service, or "who presents a valid travel document 
and confirmed reservation for transportation out of the United States within 
30 days."^^* Extensions are not to be authorized in the absence of "merito- 
rious circumstances," except in four of the eight classes, for which specific 
rules regarding extensions are set forth: (1) a nonimmigrant student or 
exchange visitor, and his spouse and children, who has lost his status solely 
because of a private bill introduced in his behalf, or, in the case of an ex- 
change visitor, solely because he' has formally filed an application for waiver 
of the two-year foreign residence requirement; (2) with some exceptions, a 
beneficiary of an approved Third Preference petition (professional), or a 
Western Hemisphere native who has Third Preference qualifications and has 
applied for an immigrant visa, or a beneficiary of an approved Sixth Prefer- 
ence petition who is qualified for Third Preference but cannot obtain a visa 
solely because a visa number is unavailable; (3) an alien, other than a native 
or citizen of contiguous foreign territory, who has apphed for an immigrant 
visa at a consulate that has accepted jurisdiction of the case, and who has a 
priority date for a visa in not more than 60 days; (4) any alien "in whose 
case the district director has determined there are compelling factors war- 
ranting grant of voluntary departure," to be granted "in increments of time, 
not to exceed one year, as determined by the district director to be appro- 
priate." The instructions provide that these categories are exclusive except 
for other specific instructions ;^^^ but this limitation is somewhat pointless, 
in light of the unlimited power already conferred on the district director 
under the fourth class. 

The category authorizing renewable or indefinite grants of voluntary de- 
parture to Third Preference aliens created some difficulties for adjudicators. 
Nowhere does the Service indicate that the discretionary grounds are inap- 
plicable to Third-Preference qualified aliens, although the instructions may 
be read to allow an examiner to find that an alien's professional qualifications 
present "substantial equities" warranting waiver, for example, of the mala 
fide nonimmigrant ground. Consequently, inconsistency is allowed to flourish. 
In one of several similar cases, the SIO who granted informal suspension 
stated in an interview that he regarded the alien accountant's professional 
qualifications as a fact "in her favor. The Government can use her." He was 

184 Operations Instructions § 242.10(a) (2)-(4) (July 30, 1969). 

185 Operations Instructions § 242.10(b) (Feb. 12, 1969). Other specific instructions do 
exist. For example, a Cuban alien seeking extension of his stay as a visitor beyond 30 days 
of entry is to be granted voluntary departure "for an indefinite period" unless his 
permanent residence is in some country other than Cuba, and the spouse or child of a 
Filippino enlistee in the U.S. Coast Guard or Navy is also to be granted "indefinite" 
voluntary departure, rather than extensions of stay, until the date of completion of service 
by the enlistee. 


unmoved by the examiner's finding, supported by the consul, that the alien 
had intended to seek employment here when she left her native country with 
a visitor's visa. 

Voluntary departure was also frequently used for aliens whose applications 
for immigrant visas had been accepted for processing at a consulate abroad. 
In substance, this practice is much like the supposedly defunct system of pre- 
examination.^^^ We found several cases where aliens waited here, with the 
Service's approval, until their visas were processed across the border in 
Canada, or in Ireland; when their visas were ready they made a brief visit 
to the relevant consulate and reentered the United States as immigrants.-^®' 
The regulation's requirement that the alien have a priority date for a visa 
number in not more than 60 days is apparently ignored in practice. One 
experienced SIO stated that he used this device after off-the-record discus- 
sions with counsel convinced him that relief would be forthcoming within a 
year or so, apparently without regard to whether the consulate had formally 
accepted jurisdiction. He felt that his practice avoided dilatory tactics by 
counsel, such as application for suspension of deportation, which are even 
more time-consuming and of great expense to the Service. Finally, adjudi- 
cators are not required by this provision to allow any deportable alien to 
remain in the United States while his application is being processed at a 
consulate. Thus, an alien was denied a renewal of voluntary departure, after 
applying to a consulate, because he had intentionally delayed his deportation 
through securing the introduction of private bills and other legal action.^®® 
Presumably, an adjudicator may exercise discretion to deny such relief to 
any alien he regards as undesirable or undeserving. 

The fourth category of aliens for whom extended grants of voluntary 
departure are authorized confers sweeping power on district directors, which 
in New York at least has been frequently utihzed. One common type of case 
in which adjudicators find "compelling" circumstances is when an otherwise 
qualified refugee or conditional entrant is inehgible for a visa number be- 
cause he has not been in the United States for two years, as required by the 
statute.^®^ We found several such cases in which voluntary departure was 
granted after denial until the two-year residence requirement had been ful- 
filled, conditioned on the continuing availabiUty of a visa number at the time 

^86 A State Department off